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sex and society
‘Yes Means Yes’ Falters

Our friend Glenn Reynolds once observed that the affirmative consent debates on college campuses are “just a test“—a preview of the efforts to redefine the meaning of sexual consent for the general public, as well. In the last two years, state legislatures in New York and California have mandated that all colleges in their jurisdiction adjudicate sexual assault under a Yes Means Yes standard—meaning that students must obtain explicit consent for every sexual act in every sexual encounter (including, theoretically, handholding or a kiss on the cheek). California also required that public high school sex education classes train students in the new paradigm. Meanwhile, a growing faction of legal scholars has started entertaining the idea of affirmative consent as the appropriate standard, not just for campus disciplinary tribunals, but for criminal proceedings as well.

But the transition from campuses to courts hit a major stumbling block yesterday, when the American Law Institute—a group of judges and scholars that prepares a “model penal code” that many state legislatures use for guidance in crafting their own criminal laws—resoundingly repudiated Yes Means Yes. The Washington Times reports:

In a rebuke to a feminist idea that has migrated from college campuses to mainstream culture, an influential legal group overwhelmingly rejected Tuesday a provision that would have endorsed an “affirmative consent” standard for the purpose of defining sexual assault. […]

Brookings Institution Nonresident Senior Fellow Stuart Taylor Jr., who attended part of Tuesday’s meeting, applauded the ALI’s rejection of the affirmative consent standard as resistance to an ideologically-driven and unrealistic idea.

“I think it’s a very encouraging indication that the broad membership of the American Law Institute, which is a pretty elite group, has repudiated a radical expansion of sex-crime law that was sought by a powerful faction of people whom I regard as ideologues,” Mr. Taylor said.

Butler is right that Yes Means Yes represents a menace to civil liberties—on campuses, yes, but even more so in a courtroom, which has the power not just to expel someone but incarcerate her. By radically expanding the definition of sexual assault, affirmative consent would technically make criminals of many if not most ordinary citizens, meaning that the authorities would have broad leeway to punish disfavored individuals and groups. And by requiring that the accused prove that she obtained explicit consent, the law would undermine the principle of innocent until proven guilty that is the lodestar of enlightened criminal justice systems. At least one judge has suggested that the standard is unconstitutional.

But the Yes Means Yes opponents should not be too encouraged by this one victory. The fact that the American Law Institute was even had a vote on adding this standard to the model penal code would have been unthinkable 25 years ago, when Antioch College‘s adoption of Yes Means Yes made it a national laughing stock. In the last five years alone, the Yes Means Yes forces have won victory after victory, persuading hundreds of colleges to adopt standards like Antioch’s, and even persuading state legislatures to formally codify them. A generation of lawyers is being trained by an increasingly left-wing academy that enforces Yes Means Yes for its students. So the American Law Institute vote 10 years from now may yield a very different result.

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  • FriendlyGoat

    The most important use of YMY is in the schools and colleges, not in the courts—–and especially in lower grades. The value of YMY is in the number of ill-advised sexual escapades which never occur in the first place because of an expected norm for much more “complete” communication before the fact. The value of this idea has never been in the number of people who could be investigated or charged after the fact.

    • CapitalHawk

      OK, sure. But who is going to be prosecuted under yes means yes? The boy or the girl? I think we all know the answer to the question (the boy) and that is the problem with the whole thing – it is, and is intended to be, a anti-male, sexist undertaking from the beginning.

      • FriendlyGoat

        If the boy does not do the girl because she did not say yes, neither the boy nor the girl is going to be prosecuted. This is the point. YMY is a very effective way of putting virtual collars on errant billy goats before they are seriously errant. (That has meaning to me because I have a real billy goat. He is completely nuts with the females. He needs YMY badly, but, alas, knows no language with which anyone can talk to him about being a more kind and empathetic fellow.)

        • CapitalHawk

          Girls do boys as well and they will, even if the boy doesn’t say yes. They won’t be prosecuted. There are Billy goats and then there are Billie goats. Only the Billy goats will be prosecuted. These are sexist laws.

          • FriendlyGoat

            You must think you can say anything here and be believed. “The girls are going to overwhelm the boys, the boys are going to go cry foul to administrators or prosecutors”—–and then, after those two imports from fantasyland, the authorities won’t get after those bad girls. Good grief.
            I can tell you that no such thing is going on in the goat yard out back.
            The three girls named Billie out there (as you paint it) are not a problem. Neither did I ever meet a girl who was such a problem. Neither did you ever either—-at least not with after-the-fact complaints.

          • Tom

            Just because you never met a girl like that doesn’t mean that there aren’t any.
            Get real, FG–“Yes means yes” is the wet dream of every would-be Mike Nifong sitting in a DA’s office.

          • FriendlyGoat

            Mike Nifong ruined his life by over-reaching. The same should happen to other prosecutors who over-reach.

          • Tom

            Yeah, but not before coming within a couple of aces of ruining a whole bunch of people’s lives himself. Better to scotch it before it happens.

          • FriendlyGoat

            Not at all. It is better to have bad prosecutors exposed, shamed and sued into oblivion. You don’t have the business community out lobbying to remove laws against shoplifting because there have been false accusations in stores. Women deserve as much right to laws as the “property” class. If the prosecutors are over-playing their roles, whack ’em.

          • Tom

            (Scratches head) Did they suddenly declare open season on sexual assault while I wasn’t paying attention? Because I think I would’ve noticed that.

            In other words, your shoplifting analogy only works if the definition is expanded to “takes too long a time browsing.”

          • FriendlyGoat

            You are arguing that women do not deserve a YMY standard in society because some prosecutors are over-zealous. I am arguing the opposite. It’s pretty simple.

          • Tom

            So wait…you’re arguing that women deserve YMY because some prosecutors are overzealous?
            I jest, of course, but NMN is the best standard for for everyone–including women.

          • FriendlyGoat

            Glad you’re jesting. As you know, I find myself defending against some who never are.
            It’s worth remembering that YMY never repeals NMN.
            NMN will always be in effect just as it was. YMY simply asks more than silence from the women who might have been silent, and demands that the men hear more than silence before assuming an affirmative.

          • Jim__L

            YMY changes the standard, rendering the protection that NMN provides to innocent behavior obsolete.

            The fact that common, positive behavior in long-term, loving, trusting relationships would be criminalized is a travesty of justice. Just what about this is not getting through FG?

          • FriendlyGoat

            Too many girls have been taken advantage of because they were meek, or trusting, or confused in a moment, or drunk. Those who want to be wooed bigtime will learn to say yes, yes, yes and yes.
            The guys will love that from those those girls who learn they are to SAY something—–aka yes—-and the ones who are not sure will have some help with not being rushed. I find nothing not to like.

          • Jim__L

            You just said that girls will have a huge incentive to say “yes”, but on the other hand won’t be rushed. Which is it?

            You’re arguing that YMY leads to a race to the bottom for girls. How does this help anything?

          • FriendlyGoat

            There are girls who want heavy sexual involvement. They will learn to “speak up”. There are guys who will want to hear that and will oblige. Both sides in that group will enjoy the speaking.
            Then there are girls who will learn that they have a right to party some with the fellows WITHOUT having an obligation to fend off billy goats with “no, no, no”——because—-the human goats (unlike real goats) will have been taught some new manners.
            Then there are the gentle romantics who will proceed as they always have—–right into marriage
            First of all, this is a social paradigm shift (more than a legal standard) which may never catch on down to the middle school level as I would hope. But, if it does, it any anything BUT a race to the bottom for anyone.

          • Jim__L

            There are girls who will learn that if they want to keep guys around, they will have to say “Yes”, loudly and repeatedly.

            I can’t think of anything more degrading to the soul. They will learn to be goats themselves.

          • FriendlyGoat

            Maybe that’s what you required of girls, eh? Look, Jim, the combination of what you peddle with churches together with “boys should get all they can until they make the girls say no” just makes me sick, okay? This stuff against YMY from church guys is beyond nuts.

          • Tom

            No, it doesn’t repeal NMN, it just adds an additional burden on the defense in a case. Whatever happened to “Better a thousand guilty go free than one innocent be punished?”

          • FriendlyGoat

            The thousand guilty have been going unpunished on this particular issue for far too long. When we start persecuting or prosecuting the guilty is when we will start suing some untruthful women silly, along with their prosecutors. This will all sort out fine.

          • Tom

            Yeah, a bunch of wrecked lives and a backlash that’ll wreck everything you wanted later.

          • FriendlyGoat

            When fraternities conclude they might be ruining their members’ future lives, they’ll stop doing it. That’s the point.

          • Tom

            You really think this going to hit frat boys? FG, you’re usually a whole lot smarter than that.
            This going to hit everyone BUT the protected classes of college campuses–those being athletes and members of the Greek system.

          • FriendlyGoat

            Yes, of course it’s going to affect the “protected classes” of the college campuses. That’s why it has so much male opposition.

          • Tom

            Heh. That’s a good one.
            Let’s be real here. It’ll touch them. A little.
            The people it’s really going to hit are the ones who the colleges aren’t protecting, and who they’ll need to throw to the wolves in order to protect the legacy Greeks and the athletes.
            Your faith in human nature is touching, but naive.

          • FriendlyGoat

            It’s said we cannot have labor standards, minimum wages and non-discrimination laws because “they’ll do more harm than good” and because they will “hurt those you’re trying to help”.
            None of that spin on labor economics has ever been true, of course, but your argument here reminds me of it.
            As for athletes and greeks, let’s consider that a non-insignificant number of athletes these days—-to their credit—-are operating with a Tim Tebow mindset concerning girls and everything else. YMY will never bother them. The “other” athletes will have girls in a line saying “yes”, so YMY shouldn’t bother them either.
            With the proverbial greek parties and greek houses, YMY could carry considerable risks for those who are used to plying the ladies with alcohol. Chances are they know it and are opposing YMY for precisely that reason. But adults with a leaning toward spirituality and kindness should not be doing that dirty work for them.

          • Tom

            “The “other” athletes will have girls in a line saying “yes”, so YMY shouldn’t bother them either.”

            Given the amount of sexual assault charges leveled against athletes that we hear about, NMN doesn’t seem to bother them much, either. That argument is lousy.

            “With the proverbial greek parties and greek houses, YMY could carry considerable risks for those who are used to plying the ladies with alcohol. Chances are they know it and are opposing YMY for precisely that reason. But adults with a leaning toward spirituality and kindness should not be doing that dirty work for them.”

            That argument would have worked on me if I’d been born forty years ago. However, I’ve grown up in a world where the girls have demanded to be treated the same as men. For myself, I won’t do it. But in the eyes of the law? You want to claim the same sexual rights as men, fine, but that means claiming the responsibilities as well. Deal with it. One comes with the other.

          • FriendlyGoat

            To your second paragraph, if there are bad athletes doing women without their strong affirmative consent, go after them.
            To your fourth paragraph, please go give that speech everywhere in the USA over the next six months. Among other things, it’s a significant subject of the election. Women need your help right now to focus on what they need to do in the voting booth at this moment in history

          • Tom

            We both know people don’t like hearing that rights come with responsibilities, FG. If that weren’t so, we wouldn’t have nearly as many people voting for Sanders, Clinton, or Trump as there are.

          • FriendlyGoat

            Actually, almost everyone agrees that responsibilities come with rights. It’s your context here that’s absurd. YMY is not women shirking their responsibilities. But, the more you tell them (not me) that it is—-the better the election will go.

          • Tom

            Yeah, it is. It’s my responsibility not to go too far, hers to tell me if I do. It’s called reciprocity, and it’s how society functions in a sane world.
            The more you keep pushing YMY, the better the election will go…for The Toupee.

          • FriendlyGoat

            You sayin’ Hillary has a toupee? I can’t say she doesn’t and it would be all right with me if she did. Everyone understands Dolly Parton and has for decades.

        • Blackbeard

          Watch a typical romcom movie. The boy and girl are walking along the Seine after a romantic night in Paris. They stop on the Pont Neuf. They look into each others eyes. The boy leans forward and gives her a passionate kiss.

          That was a sexual assault.

          And you really think this is a good law?

          • FriendlyGoat

            The reason it is not a sexual assault is that no one except a girl who is insane will make any complaint about that. If one is so insane, the “authorities” will write it off as a misunderstanding after gathering the facts—–and then—–the girl will come off as a loony-bin candidate (which is why she will never file the complaint in your scenario). This is not about hand holding and it is not about a fully-dressed kiss after hand holding on a romantic walk.
            Once upon a time, the conservatives in my elder world (like, say, my grandparents) would have celebrated any idea which would cause teenage boys to be respectful of teenage girls. I seriously, seriously do not understand why today’s conservatives have gone so upside down and backwards that they argue this one to the moon from the wrong side.

          • Blackbeard

            Sexual assault is a crime so the state is the plaintiff not the alleged “victim.” Even if the woman involved doesn’t want to make a complaint the state can still pursue the case. Of course they need evidence if they don’t have a statement from the woman but that could be witnesses or perhaps a surveillance video.

            Is this a far fetched scenario? Of course it is and, just as I said in my original comment, this would be a rare occurrence. But nevertheless the YMY law would make such behavior a crime, and a sex crime at that, so if the DA had a reason to go after this defendant he could. As I said above, we shouldn’t give prosecutors such power.

          • FriendlyGoat

            You don’t trim the feathers of prosecutors by failing to have laws to discourage sexual assault. You trim the feathers of prosecutors by firing bad ones. It would also suit me fine, by the way, if we had mechanisms for the public to sue over-prosecution silly. But none of that is the issue with YMY, which is to be a communication standard between men and women, boys and girls.

          • Blackbeard

            If you think that holding hands without specific permission is sexual assault then you are beyond my help.

          • FriendlyGoat

            I just told you specifically above why hand-holding is not a sexual assault, why no complaints will be filed and no prosecutions conducted. I am beyond “your” help, though, and I say that smart-assed thing because I am weary of being accosted with nonsense every damn day from you guys in conservatism.

          • Anthony

            Something (not related to above topic) passed on to me that I am passing on to you: http://www.stirjournal.com/2016/04/01/i-know-why-poor-whites-chant-trump-trump-trump/

          • FriendlyGoat

            Thanks. Both articles are interesting. With respect to the first one, we know too many men are already Trump robots. The only question is whether women are as stupid as men.

          • Anthony

            I too found both pieces informative (prior to sharing, I was unaware of site). And you’re welcome.

            To your observation, provoking and playing on feelings of resentment and disdain while bits of fear, hatred, and anger lies unexamined (to say nothing of vanities, insecurities, etc.) are human traits FG. As you infer, perhaps the “fairer sex” can provide some balance going forward.

          • FriendlyGoat

            Women either win the election of 2016 or they lose it. Too many men are going to go with Trump. The female voters in the general are the “stop Trump” mechanism and they are the only one.

          • Anthony

            Contemplating where we are…

          • FriendlyGoat

            I simply hope that a significant majority of women recognize what they—-in particular—–have at stake.

          • Anthony

            Agree, 100%.

          • Jim__L

            They’ve already lost. Hillary is a felonous mediocrity, and Trump is Trump.

          • FriendlyGoat

            I’s impossible for women to have already lost when they have not yet voted.

          • Jim__L

            They’re presented with a lose-lose choice.

          • FriendlyGoat

            Spoken like a man, by a man, for a man.

          • Jim__L

            Not in the slightest. Hillary is a felon for everyone, and risked everyone’s security because she figures the rules don’t apply to her.

            Voting for her is a losing proposition for anyone.

            Or are you saying national security laws are somehow sexist, and women shouldn’t be expected to properly handle classified data?

          • FriendlyGoat

            I’m saying you have fallen in line with the Trump Robots in an alliance against the interests of both civilized women and civilized men. With luck this whole 2016 Republican movement will be rejected by voters taken as a whole.

          • Jim__L

            You might reconsider your “all men are potential rapists” point of view in light of the second.

          • FriendlyGoat

            I don’t have that point of view. Nothing to reconsider.

          • Jim__L

            FG, you’re willfully misreading the law here. Please don’t think you can say pretty much anything and be taken seriously.

          • FriendlyGoat

            No, Jim, I’m not. There is no criminalizing of hand-holding and kisses on romantic walks. It is not happening.

          • Jim__L

            The letter of the law does so. There is no real-language interpretation of YMY that does not.

            What you are proposing basically destroys rule of law. It’s insane.

          • FriendlyGoat

            Let me know when you see an administrative action against a college student for hand-holding, okay?

          • Jim__L

            Sure. In the meantime, how about a spot of news about how when you don’t stop men who claim to be “transgender” from being in a women-only environment, women are harmed?

            http://www.torontosun.com/2014/02/26/predator-who-claimed-to-be-transgender-declared-dangerous-offender

          • FriendlyGoat

            Let’s stick to the YMY hand-holding charges. As for your article, a shelter is not a restroom.

          • http://www.librarything.com/profile/Bretzky1 Brett Champion

            Except for two months later when the boy cheats on her and she decides to take her revenge by filing a complaint against the boy, who violated the technical letter of the law.

          • FriendlyGoat

            She cannot file a charge that will stick on hand-holding. EVERYONE, even the wildest feminist you ever heard of, has more common sense than to do an action against a person for hand-holding. This is not going to happen.
            Now, if you’re talking about off-clothes stuff that never should have happened and which reasonable people might construe as an assault——yes——you may have a point about a two month delay and a motivation of revenge. And this is why YMY could be useful for preventing some of those ill-advised encounters in the first place.
            Teenage boys have plenty of opportunity for the famous solo sexual outlet. They do not need to be doing girls nearly as much as has become commonplace. The whole idea of YMY is to slow this down for the good of everyone involved—-especially in alcohol settings.

          • http://www.librarything.com/profile/Bretzky1 Brett Champion

            The poster you replied to was talking about kissing, not holding hands. And yes, under every single “yes means yes” proposal that I’ve seen, kissing someone without their express verbal consent constitutes sexual assault regardless of the woman’s state of undress.

          • FriendlyGoat

            If you go down to the grocery store, grab the first woman you see and give her a big kiss, they may call the cops. Intent mattered before YMY and will be sensibly applied after YMY. Don’t worry. If you’re a nice man and raise a nice son(s), none of this is ever going to bother you.

          • seattleoutcast

            You don’t know who will do it, but that is irrelevant. It’s the presumption of guilt that is the problem.

          • FriendlyGoat

            There is no presumption of guilt if there is no assault. False charges will ruin some women, ruin some administrators and ruin some prosecutors. The Duke case is famous. Some other outrages will become famous too.

          • seattleoutcast

            There is a presumption of guilt. You even implied it with your “virtual collars” remark. Boys must be tamed somehow because they are naturally too aggressive.

            Well, how about telling girls not to dress slutty? Maybe we should put virtual dresses on them to prevent boys from being so aggressive?

          • seattleoutcast

            And what about the cases where the men didn’t escape the false charges? A university hostile to men has already ensured it. But you still think it’s 1968, not 2016 where the feminists and obama administration has ruined school for young men.

          • FriendlyGoat

            I believe men will handily escape false charges when the alleged assault incident simply did not occur at all. But, some of the guys who rushed women will likely have a problem. So, YMY, if/when implemented is useful for getting men to think and not rush the women—–before the fact. It’s value is in prevention of incidents, not in “adjudication” of incidents.

          • Matt B

            Good catch. The Ministry of Truth will have to insert the proper dialog into all those old movies.

        • seattleoutcast

          And, to avoid the problems that will inevitably appear in the “he said, she said” court battles, we should put real collars on boys with monitoring devices to prove innocence.

          When Neil Howe said the role of Gen X was to rein in the excesses of the baby boomers, I didn’t know what he meant. Now I do.

          • FriendlyGoat

            You can put a monitoring collar on your son(s) if you want. Mine got along okay with good manners and careful behavior.

          • seattleoutcast

            What a stupid comment. You didn’t even make a coherent response. Not that I’d expect anything more.

          • FriendlyGoat

            Actually, I hit the issue squarely. If you want your son protected with a monitoring collar to prove his innocence because you do not think he could otherwise survive a YMY world, go for it. I had a son who knew better than to trash a bunch of girls and instead simply married one with no others accusing him of anything. I was proud of him for that and I think all the boys should do likewise. (Remember, you brought up the collars, not me.)

          • seattleoutcast

            No, you didn’t. You didn’t respond to the “he said she said” argument that will inevitably happen. Instead you said you’ve got a good boy. Good for you, a boy with manners. It won’t help at all if he had slept with a girl who said yes and later, swore in a court she said no.

          • FriendlyGoat

            The point is not that I had a good boy—-although that happened to be the case with respect to him not “using” girls, which is to his credit, not mine.
            The point is that any or all boys who do not rush and “use” girls do not need monitoring collars to prove anything—–and they still won’t after YMY is more of a standard for men’s lives.

          • Jim__L

            Your son got by with a generous helping of luck. And a good religious education that stuck with him later in life, as I’ve heard.

            … aaaaand the fact that the standard as they grew up was No Means No.

          • FriendlyGoat

            My son got by because he was not a womanizer, to his credit, not mine. He was more interested in sports and work than girls through most of high school. In college, he did hang around with some other students who were part of faith clubs at a public state university, and then, he married one of those girls.
            I only brought him up because seattleoutcast was recommending monitoring collars on boys to gather evidence to support the defense of those boys. You know there are other routes, I know there are other routes, and my son literally showed me how to do it right. (He was far better about this than I was at his age—-NOT saying I trashed a bunch of girls. But my attitude and understanding were not as good in the 1960’s as they might have been. His was better, and honestly, it kind of astonished me. All of this was about two decades ago.)

  • Blackbeard

    If YMY was ever enforced literally an enormous backlash would be created and the law would be swept away. That is not the intention and will never happen. What YMY accomplishes is to give prosecutors frightening power to decide who and when to prosecute. Virtually anyone in a romantic relationship is going to violate YMY all the time. If you are walking down the street with your long term sweetheart are you really going to ask permission to hold hands? Proponents of YMY will argue that the law will not be used that way but the point is, it can be used that way, perhaps to force a plea bargain on some other otherwise unprovable charge.

    Prosecutors should not have such powers.

    • CapitalHawk

      The troubling part is, they already do.

  • Blackbeard

    Reading FG’s posts on this thread is quite instructive. Of course it’s possible that he’s just a troll but I’m going to assume he is sincere if misguided. Nevertheless he refuses to believe what numerous people on this thread have told him about YMY laws and he refuses to do any research of his own which, if he did it, would reveal that what we are saying about YMY is true. Instead he keeps insisting that YMY can’t mean what it clearly does mean because it would be stupid if it did.

    I think what we see here is an important reason reason why policy fiascos like YMY can happen. It’s part rational ignorance (Like FG the typical low information voters can’t be bothered to actually research a topic.) and partially misguided “common sense.” (The law can’t mean what is says because it would be dumb.)

    This, in part, is how we get such dumb laws.

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