Opinion: Will ‘yes means yes’ create more problems than it solves?

There isn’t much hard science to support it, but the conventional wisdom on date rape is that university and college dormitories and fraternity houses are ground zero for this terrible crime. This is because of colleges’ combustible mix of youthful inexperience, free-flowing alcohol and the long-standing yet still inexplicable practice of university administrators who insist on adjudicating cases of alleged rape rather than referring them to local law enforcement.

One attempt to reduce the perceived campus rape epidemic -- a federal survey found a fifth of college women claim to have been the targets of sexual assault -- is California’s new “yes means yes” law. California universities that receive public funding must now require students to get “affirmative” consent before engaging in sexual activity. The law has its origins in policies such as one controversially enacted by Antioch College in Ohio in 1993. The original draft of California’s “yes means yes” law would have required that each participant in sexual activity obtain explicit verbal consent from his or her partner or partners for each discrete act. If enacted, the law would have spawned conversations that rival a “Saturday Night Live” skit: “May I touch your left breast?”

“Yes, you may.”

“Now may I touch your right breast?”

“No, you may not.”

“This is weird.”

Fortunately the bill’s sponsors in the California Assembly responded to critics -- of whom I was one -- by eliminating the verbal requirement. Now students are only required to get clear consent, which may include gestures and other nonverbal cues.

California’s historical role as a political and legal innovation lab means the law could spread throughout the United States. So a national debate has ensued -- and not just between liberals and conservatives, but also among liberals -- as to whether “yes means yes” might wind up creating more problems than it solves.

Ezra Klein of Vox agrees that the law will add a lot of confusion to what Elvis Costello called “the mystery dance,” but nevertheless thinks that it’s a good idea because it will force oafish drunken males to stop and check themselves before grabbing and groping: “Everyday sexual practices on college campuses need to be upended, and men need to feel a cold spike of fear when they begin a sexual encounter,” Klein wrote.

“Critics worry that colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations,” Klein writes. But that, he believes, is the price of progress.

Well, doesn’t that sound fun!

In New York magazine, Jonathan Chait retorts: “[Klein] is not merely arguing that, to make an omelet, one must break some eggs. He is arguing for false convictions as a conscious strategy in order to strike fear into the innocent. This is a conception of justice totally removed from the liberal tradition.”

What makes this issue controversial is also what makes it irresolvable: Most sex takes place behind closed doors. When something goes wrong, there’s a victim – or, under our system of justice, an alleged victim – and a suspect or defendant. Unless there is a National Security Agency program that Edward Snowden hasn’t told us about yet, there’s often not enough physical evidence – even if there is DNA -- to prove that a sexual encounter is rape.

The problem with the law is that it tacitly validates the attempted defense of many accused rapists that women are too hard to read, that if they’d known that their aggression was unwanted, they would have backed off. However, people who make that argument are skating on some pretty thin rhetorical ice. In the real world, anyone with an IQ high enough to tie his own shoes can tell if his partner is into it or not. “Yes means yes” seems to be telling rapists, “OK, since you can’t tell if a woman is saying yes or no, we will require you to get explicit consent for every step.

We can, as a society, educate young men (and women, since men do accuse women of sexual violence against them as well) to treat every woman the way they would want their mother or sister treated. Universities and police can do better when it comes to treating alleged rape victims with respect. Colleges should stop trying to replace the role that properly belongs to the courts. But the bottom line is, this is a problem as old as time and it isn’t likely to go away any time soon.

Furthermore, how would “yes means yes” change the “he says, she says” dynamic of date rape? If a guy would lie about a woman “wanting it” before, surely he would lie about having received affirmative consent.

Katha Pollitt, whose writing I admire, requests: “Pundits, hold the jokes about sex contracts and the hysteria about most sex now being rape.” Sorry, I can only spare you the hysteria (unfortunate choice of words). Unlike date rape, sex contracts --like the one negotiated between Robert Redford and Demi Moore in the much-talked about 1993 film “Indecent Proposal” -- are simply too funny not to draw in a cartoon.

Follow Ted Rall on Twitter @tedrall