13 October 2014

Yes doesn't mean no either

California passes a law. Various sectors choose to comment on what it means. So I guess that means me too.

Let's go ahead and make a few important stipulations to get them out of the way of the conversation.

1) Rape is rape. Regardless of its cause it is an act of aggression. "Rape rape" is perhaps distinct in circumstances but certainly not in the type of violation against another from say "date rape". They are the same animal.
2) Rape is a criminal act, depriving another person of agency and autonomy for personal gratification without consent is a serious criminal act even and should be treated as such. I would place very few criminal actions as more serious in the form of moral and legal violations involved (basically murder or torture would be on par, but that's about it).
3) Attaining consent is not that complicated (for most of us it really isn't that complicated to have sex when we want to, with a partner we want to). Which should make violations of consent and autonomy less sympathetic. Yet there is still some social and rhetorical baggage relating to victims of sexual crimes that suggests that we do not take them necessarily as innocent victims of aggression.
4) Thus things which we can do to prosecute violations of consent, protect those who are violated or potentially violated, and make such violations less likely are an important public and social good benefiting the individuals who can instead form mutually beneficial relationships.

All that said. I don't think California's law falls into that last category (as a common issue with many laws, it looks like a "we must do something, this is something, let's do it" logic, rather than well-thought out as an approach to the problem). I have a number of complaints.

Firstly. The bill is limited to college universities. It does not apply outside of colleges. It governs the procedures of investigation and authority and evidence involved in acts committed on universities by their students (or faculty). While there may be some mysterious process by which rape is more common among students of colleges and the inhabitants of dorm rooms than among the general public which accords these matters with greater importance to the legislative process, I am doubtful there was any evidence presented that the vulnerability was greater among those bodies of the public than among any other. If our interest in governing is in protecting the welfare of the general public, it should be for protecting all of that public, and not merely those fortunate and educated enough to attend universities. General legislative bodies should not make it their business to make distinct legal environments for certain groups of the public without some compelling reason that it should be necessary. This fails to do so. Either there are victims or there are not, and it should matter very little whether they were attending a school or not. If it was to be an experiment to try to reduce sexual assaults and rapes at universities, in the form of attempting to accelerate a discourse over sexual advances, equality of genders, and the importance of clear communication of consent, let the universities do the testing rather than a government. A law has the quality of being difficult to abandon as an experiment if/when it is shown that it does not work and thus we should be cautious of making laws where other bodies may act. And to boot, this law has the quality of accelerating and continuing the arbitrary nature of enforcement by that same lesser body of justice than the courts that could very easily have appointed it upon itself to make these changes internally already.

As a related problem within sexual assault cases, there are states where rape victims must pay for the medical treatment that they must undergo to treat injuries and examinations of their bodies after a crime has been committed against them. The state may pay for portions, such as the collection of evidence of a rape (usually sexual secretions like semen), but large quantities of the bill could go on the members of the public who were victimized, or the bill may be only paid after any criminal charges are pressed and a case goes to prosecution and a victim is paying up front. California may not have this problem, but lots of other states do. That seems like a pressing matter for a legislature to attend to to help protect the citizens they represent. All of them.

Second. The bill does not treat rape and sexual assault necessarily as criminal acts. Both for the victim and the accused, this is a poor attempt at justice. An accused deserves more than preponderance of evidence for significant penalties to emerge, but rather clear evidence of guilt should be involved and adjudicated. Even if those penalties relate to their academic life, at one particular university, the attainment of a college degree at a particular university, or post-graduate degree, still has significant impact upon lifetime earnings, career paths, etc. It is not the same as imprisoning someone in the deprivations that are involved. But we are talking about a person's life here. Our system should presume a strong level of innocence until we provide proof otherwise of guilt in the destruction of others. This is also true of victims of assault, it is a person's life, and a strong level of innocence should be provided. Such cases deserve the prospect of severe penalties (like that of depriving the liberty of others to do as they see fit). They should be arbitrated, but the arbitration of justice should include the possibilities of using police powers and courts of law to do so. Colleges are not necessarily trained to deal with these matters, and have just as many incentives as police to be arbitrary and capricious toward both accused and victim, but they have a further incentive in that they are dealing with their own students, with powerful donors/boosters, star athletes or students, and so on. There were already a number of complaints relating to the handling of some high profile rape cases, or the matter of how some conservative Christian colleges were handling the entire concept of rape that suggest that the treatment by the university of complaints and grievances of a serious nature may not be to the incentive of the university to take to task. Police have their own bad incentives in investigation or prosecution of crimes, but they also have no direct financial and PR incentive to make rapes go away if they might reflect poorly on the institution of the university (they have also incentives to protect their students, but creating a system that allows them to arbitrarily punish some students and ignore others is the best way for them to do so, by their standards). A law which entrenches this poor incentive rather than removes it ought to be treated with some level of suspicion rather than cheered.

Thirdly. To me the general problems of college campuses and rape or sexual assault stem from two things
a) People (mostly men) who are predatory, and who commit acts of sexual aggression in a serial way, taking what they want from others. Generally such people do not care much about what consent laws might be changed to mean in the first place, and for whom these kinds of legal changes are irrelevant (if not protective). There is not, by and large, an ambiguous nature of consent for sex and sexual acts, nor some grey zone of uncertainty to navigate that there are large quantities of rapes committed because someone didn't understand the body language and intentions of a potential sexual partner. Nobody really has to tell anyone verbally that sex is on the table (one of the more common complaints I'm hearing is the ad reductio argument that now sexual partners will have to ask each other at each step of a sexual event what they're doing next. You don't really have to ask in words, so that's a rather silly complaint). It helps to come right out and say so of course, but it isn't that hard to read both the when it is and when it isn't from just body language and physical reactions.

There might be some nebulous zone where there is reluctance, from either party or both, for some action or another. But this is unlikely to stray into a denial of consent either and usually only requires that both parties are communicating and listening. If there's something that might be helpful there and there are numerous complaints about these kinds of incidents being registered as sexual assaults by colleges or police, or some other authoritative body, what would probably be necessary isn't a new legal environment. It's a sex ed course that teaches and discusses issues of consent and communication with sexual partners. Acts that crossed the line over into assault or rape, we already have laws for without needing a new standard necessarily. If this was the problem, which I'm dubious, then the need for a standard is cultural in change and nature. More people need to be willing to communicate and listen to any intended sexual partners about sexual acts. Before, during, and after. As embarrassing or complimentary as that can be, and as awkward as many people find it. It's a far healthier environment on the other side of that fence.

b) The second causal agent is alcohol (and to an extent other mind altering substances too). Younger people at college have a rather easy relationship with alcohol. They are away from supervisory agents (parents usually) who could also attend to their relative safety. They are often away from long-time childhood or teenage years friends who have a strong investment in their well-being and safety who will look out for them at a party or friend's room/home and assure they won't do something that could place them in danger. Many college students come in with some level of "expertise" in the use of any of these substances, but they don't have a clear delineation that says "I can consume this much and still make cogent and responsible decisions in a moment of crisis, but if I consume this much, I cannot". The compression of available recreational time between studying and normal behavior and the possibilities of penalties for underage drinking further press for higher pressure consumption habits. Which results in a lot of binge drinking, and also a lot of drunken occasions that can involve sex. Consensual or not (some of it while intoxicated is consensual, some of it is perhaps unwise, and some of it is sexual assault).

None of this suggests that it is the fault of the students who consumed too much if something awful and terrifying happens to them later. It is incumbent on others to treat someone who is in a state of vulnerability from a chemical "impairment" with a level of dignity and security for their person rather than to press the advantage and violate that person. It is hardly our fault if there are a few who seek a more predatory relationship with our vulnerabilities and we fail to adequately protect ourselves against any possible, however unlikely, threat from coming to pass. If someone is robbed, it is not our fault that we didn't have a security system installed, or proper locks. Such precautions may reduce our risks, but they are not deemed as blameworthy. Someone still had to decide to walk into our home or property and take something from it. The same applies here.

I cannot say there would be a point of alcoholic consumption where I would find that individuals would cross that line that didn't require alcohol to violate it in the first place. That is: the people who are initiating assaults don't need to be drunk, don't need to be warned not to get drunk or to be careful who they are drunk around, because they'd be the same assholes with or without it and the alcohol is not their problem. The alcohol is a grease for them to use their problem more easily. There does need to be a strong social message at work here. Not to say "don't get drunk", but "look out for one another". Hold up as praiseworthy those who object or stand up rather than look the other way and claim the victim deserved it and should have known better not to get that drunk. In the long run there's a strong need again for that honest conversation about sexuality and consent to be undertaken by scores of many young people, and that aggression against others without obtaining consent is a serious concern that should be treated seriously, perhaps even criminally.

Our ultimate goal here in dealing with this as an issue should be in part to assure that people who are committing acts of aggression are adequately punished for having done so in accordance with the severity and frequency of those violations. In some cases, the number may be dozens and the severity will be utterly banal in its details. "She said no and I did it anyway" versus "she said nothing and I did it anyway" is not really a different legal and moral environment to me, both are a species of aggression and sexual assault or rape. This is not that complex when boiled down to its specific elements that we should need a standard that is very different from "no means no". Non-consent is non-consent. Resistance or verbal objection should not be necessary to tell someone to stop trying to fuck someone if they don't want "you" to do it. In the sense that this establishes a "yes means yes" standard, that's great for slogans, but it doesn't actually shift the goalpost in moral terms toward stopping anything.

More importantly, the main goal should be to reduce the likelihood that anyone in particular is violated and becomes a victim of such people. There might be a path where these kinds of changes help make that the case. There are other universities around the country who have installed these kinds of rules relating to sexuality among students. Perhaps there have been studies on the effects those changes have on the frequency of sexual assaults, complaints of assaults, and the penalties doled out for those assaults as there may be for this to suggest that it does have a strong impact on the social conversation and the likelihood of sexual misconduct versus a sexual equality. But if there are any looking into the impact of such concepts, I'm not seeing them trotted out in defence of the legislature making a change instead of the universities doing so ahead of them, and I'm not clear on how the college can make the system less arbitrary and reasonably fair to all parties to a complaint (especially victims) with or without the intervention of the state on their behalf. I'm concerned we have allowed victims to be ignored, accused to be punished without due process, and for no one to learn much of anything about how to prevent it from happening again, or to others.

Given the seriousness of the issue, I am willing to allow for some leeway in experimenting to see what will work and what will not to reduce its severity and impact further. I'm not convinced that it won't ultimately have some positive effect that these kinds of changes should happen somewhere. Perhaps it will help. But I am not sure that it properly targets the problems, provides a clear and transparent method of adjudicating claims and concerns for all involved, and places a stronger incentive for colleges to treat this as a serious matter for their attention (than should already have been the case).
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