Yes Means Yes: There Oughta be a Law

Yes Means Yes

Yes Means Yes

Should “no means no” be upgraded to “yes means yes”?

The California Legislature says state-funded colleges should do just that when determining whether a complaint constitutes rape. By a 52-16 vote in the State Assembly and unanimously in the Senate.

Because:

  • Rape is rampant on college campuses, where 1/5 of women are assaulted
  • Rape charges on campus almost always involve alcohol
  • When people are drunk, they often can’t say anything

Drinking condemns her, gets him off the hook

But would that open drunk men to rape charges?

No fair, right? He’s drunk, so he can’t be responsible for his behavior!

Hmmm, those who say, “She shouldn’t be drinking because she might get raped,” have a problem with saying, “He shouldn’t be drinking because he might rape”?

And these aren’t equivalent situations. Because when a drunk person is attacked she or he is being harmed. But when drunkards attack, they are doing harm.

Doing harm should be punished. Not getting drunk. (It’s sad when some think a tipsy girl “deserves” whatever she gets, as though it were a punishment.)

Cue next argument:

The nanny state is bad

Oooooh! Don’t bring the nanny state into the bedroom!

Yeah… those are the same folks who want the nanny state in your bedroom all the rest of the time: no birth control, no right to terminate a pregnancy. Even if a woman’s life or health is at risk. Or if she has been raped by some drunk frat boy. And no gay stuff, either.

Nanny state worries are only used when convenient.

If you’re in a tizzy over the State Nanny taking away your freedom, you’re likely worried about freedom for the powerful… while ignoring the more powerless. 

Before feminism, sexual assault law — and general ways of thinking about rape — mostly came from the perspective of men in powerful positions. Their views passed through the generations and became a part of our culture. Even today we’re still more likely to hear from the perspective of men in media, legislatures, courts… The male view becomes conventional wisdom, and both men and women internalize it.

Men aren’t bad. But they are more likely to worry about being accused of rape than worry about being raped. And to them, freedom from the nanny state just might seem like a bigger deal than freedom from the trauma of attack.

But which is worse: Twenty-somethings guided by a so-called nanny state? Or rape?

And anyway, I wouldn’t want to settle for anything less than enthusiastic consent, with or without a law.

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About BroadBlogs

I have a Ph.D. from UCLA in sociology (emphasis: gender, social psych). I currently teach sociology and women's studies at Foothill College in Los Altos Hills, CA. I have also lectured at San Jose State. And I have blogged for Feminispire, Ms. Magazine, The Good Men Project and Daily Kos. Also been picked up by The Alternet.

Posted on August 29, 2014, in feminism, rape and sexual assault, sexism, violence against women, women and tagged , , , , , , , . Bookmark the permalink. 23 Comments.

    • Pretty sad when even women judges go there!

      It occurred to me that my thoughts may have been less clear than I had hoped, So I edited/added these points to the post:

      Even today we’re still more likely to hear from the perspective of men in media, legislatures, courts… The male view becomes conventional wisdom, and both men and women internalize it.

      Men aren’t bad. But they are more likely to worry about being accused of rape than worry about being raped. And to them, freedom from the nanny state just might seem like a bigger deal than freedom from the trauma of attack.

  1. “No fair, right? He’s drunk, so he can’t be responsible for his behavior!”

    That’s a good point. For all the noise about how women could protect themselves from rape by not drinking, I haven’t heard a single peep about how men could protect themselves from rape accusations by not drinking.

    So women are supposed to be responsible enough for both men AND women and avoid rape. If a woman gets raped it’s all “well she shouldn’t have been drinking” but the minute a man gets accused of rape it’s all “Oh noes! Being convicted of rape will ruin his life!” No consideration of the fact the BEING raped has kindofa big impact on someone’s life.

  2. Rape is rampant on college campuses, where 1/5 of women are assaulted
    […]
    If you’re in a tizzy over the State Nanny taking away your freedom, you’re likely worried about freedom for the powerful… but not for the powerless.

    Aren’t most of the “poweful” people the ones who have college educations? When I read that 20% of women on college campuses are assaulted, it makes me wonder what percentage of the people in power right now, who are legislativing and enforcing laws, are rapists.

    But wondering something like that is just an eyebrow-raiser and a dead-end.

    If a person can beat a rape charge because they’re drunk, that’s outlandish. They were sober when they made the choice to drink.

    So… if someone watching TV one night decides he wants to go out and rape someone later that evening, he just has to slam a six-pack beforehand to make sure he won’t be held responsible for his actions?

    • Good point on finding an excuse.

      Our ways of thinking tend to come from the perspective of the powerful, which is usually a male perspective (men in the past — and still to this day — are more likely to own media, write/speak in media, be the lawmakers, the judges… And men are more likely to worry about being accused of rape than worry about being raped. So they have a bias that tends to blame victims. And then the rest of us — men and women alike — are more likely to hear those views, internalize them, and they become conventional wisdom.

      btw, based on your comment and another one, I edited the post to try to make that point more clear.

      • “The other trend that is equally disturbing is when college are forced to punish alleged perpetrator with real evidence.”

        Should have read,

        The other trend that is equally disturbing is when college are forced to punish alleged perpetrator WITHOUT real evidence.

        As for sexual assault and rape culture, I tend to believe the author below,

        http://time.com/100091/campus-sexual-assault-christina-hoff-sommers/

        A lot of these cases ARE in the court system. There too, women are unhappy with the outcomes. In some cases, rightfully so. In others, it is ambiguous. Sexual assault/rape are just difficult cases.

        I watched a British documentary on how many women are sexually assaulted while on the Tube (subway). It is really pathetic, sad, and disgusting. I had no reason to disbelieve the women. But, how does a woman prove it without witnesses?

        Yes, there are cases where women have been sexually assaulted AND videotaped in the process. Most of these cases DID result in punitive actions being imposed on the perpetrators. There are also videotapes of women alleging sexual assault and/or rape which proved otherwise. Most recently was the Florida State QB who was accused of rape last year. When his roommate produced a cell phone video recording, it showed otherwise.

        I am not making light of this problem. It IS a serious issue. No one should be let off the hook JUST because alcohol was involved. All I am saying is when BOTH parties are drunk and impaired (with no witnesses or sober witnesses, how is one to discern the truth? It’s difficult! It boils down to credibility. Under our laws, guilty in a criminal case MUST be beyond reasonable doubt.

      • There is a lot of money to be made if you are a woman who takes an antifeminist position, and Christina Hoff Sommers is someone who has figured that out.

        She says:
        The one-in-five number is derived from surveys where biased samples of respondents are asked an artful combination of straightforward and leading questions, reminiscent of the conclusory interviews behind the daycare agitation. A much-cited CDC study, for example, first tells respondents: “Please remember that even if someone uses alcohol or drugs, what happens to them is not their fault.” Then it asks: “When you were drunk, high, drugged, or passed out and unable to consent, how many people ever had vaginal sex with you.” (Emphasis mine.) The CDC counted all such sexual encounters as rapes.

        The only example she gives of so-called bias is not a bias. That is the definition of rape.

        And she doesn’t give any examples of men who have been punished without real evidence. If that’s the case, of course they shouldn’t have been.

        And of course you need evidence to convict someone.

    • I have serious reservations about that 1 in 5 stat. Are 20% of women walking around today in America rape victims? I seriously doubt so.

      When BOTH parties are impaired with alcohol, can the alleged victim really say they have been raped?

      That why a lot of these cases (or alleged cases) of rape are extremely difficult. Women get angry because just because she claims rape she is not automatically believed. If I were to allege that I have been robbed or my house burglarized, there must be evidence of such. Always siding with a usually alcohol impaired alleged victim is difficult.

      We have due process in this country. We have something called the Bill of Rights. In a legal criminal case, you must prove your case beyond reasonable doubt. I think if both parties are impaired, it is going to create doubt. Just common sense.

      The other trend that is equally disturbing is when college are forced to punish alleged perpetrator with real evidence. In other words, on college campuses today there is no due process of law for men.

      Again, rape cases in and of themselves are difficult. When you combine this with irresponsible drinking on by both parties, they become even more difficult.

      I have read research on hookup culture on college campuses. It would appear in about 50% of the cases, the young women gets little sexual gratification yet goes through with it anyway. Now, is that rape? Only if she said “NO” and it was ignored would I consider it rape. Or if the guy forced or coerced her. Sweet talking a woman into sex is not rape. When you consent to something because you just want to go along with the crowd, then it is not rape.

      Rape is a crime and the perpetrator should be punished. But, rape is also a very difficult crime to prosecute. Invariably, it is going to come down to his word versus her word, unless there were witnesses. One is innocent until PROVEN guilty.

      • “I have serious reservations about that 1 in 5 stat. Are 20% of women walking around today in America rape victims? I seriously doubt so.”

        That is a statistic on sexual assault, which isn’t always the exact same thing as rape.

        “When BOTH parties are impaired with alcohol, can the alleged victim really say they have been raped?”

        A lot of times there is evidence like pictures being taken of an unconscious girl being assaulted. Or witnesses. But your comment is good evidence of how we so often want to let guys off the hook if they were drinking.

        “The other trend that is equally disturbing is when college are forced to punish alleged perpetrator with real evidence. In other words, on college campuses today there is no due process of law for men.”

        Rape victims would welcome having this handled by the police/courts. Because schools too often don’t want to sully their reputation and so they let rapists off the hook. Otherwise, I’ll have to say that your first sentence doesn’t make any sense. If you have real evidence then someone should be punished.

        “I have read research on hookup culture on college campuses. It would appear in about 50% of the cases, the young women gets little sexual gratification yet goes through with it anyway. Now, is that rape?”

        Not if she freely consented.

        “One is innocent until PROVEN guilty.”

        Of course.

      • Huggy bear, my comment was worded poorly. Your points are well-received, thanks. As far as the defining line, I was speaking strictly of 100% involuntary, non-consensual, not a woman who was drunk, felt pressured, and regretted it later, though it’s unfortunate when people (men or women) consent to sex for the wrong reasons.

        And yes, I do believe that due process is a good thing.

  3. Then all students in college shouldn’t be having sex, because probably most guys and girls at parties or bars, are intoxicated to a certain extent. And there are plenty of girls who have a little alcohol who know what’s going on and can decide to consent or not consent. If that’s the case, if a man and woman are equally drunk and have sex, aren’t they both raping each other? Nope, it’s the man doing it to her, even if she initiated just as much as him? What if the guy is drunk and girl less so or not and they have sex. Did she rape him?. Law probably wouldn’t see it that way either.

    • Well, they both need to give consent, then.

    • Having sex with a consenting drunk person doesn’t make it rape, it’s having sex with an incapacitated person. That’s how the California law works. You could be incapacitated for any reason, including too much alcohol and at that state another person can’t legally have sex with you.

      “if that’s the case, if a man and woman are equally drunk and have sex, aren’t they both raping each other?”

      If both people are incapacitated then it’s most likely not possible for them to have sex with each other

  4. I get that being drunk means you can’t legally consent to sex, but isn’t that the same for men. If a man got drunk and had sex, he could also claim to be raped. If one person is sober and the other drunk, there’s argument, but I feel like things are fuzzy when both parties are drunk. That means neither could legally consent to sex. I know it’s more common for the man to take advantage of the woman, but that doesn’t mean there are situations where that’s reversed, or where there are two women or two men.

    I’m just not sure a yes or no answer is sufficient when both people are drunk. And I’m not saying anyone should get off Scott free. I just feel like the fact no person, regardless of gender, can consent to sex when they are drunk should be part of the conversation.

    Take murder for example (just because it’s another serious, violent offense). Does a person who commits murder while plastered face the same fate as someone who premeditated murder? They still face punishment, but not on the same level.

    • No one should initiate sex unless the other person is consenting, whether it’s a guy or a girl. I’m speaking in terms of women because nearly all of the reports of rape come from women. (And men who are raped are usually raped by men, btw.)

      And then there is the issue of harm. Don’t cause harm. If you know that you may cause a traffic accident if you drive drunk, don’t drive. If you know that you could rape if you’re drunk, don’t initiate sex. And never murder under any circumstance.

    • “Take murder for example (just because it’s another serious, violent offense). Does a person who commits murder while plastered face the same fate as someone who premeditated murder? They still face punishment, but not on the same level.”

      Here the answer is clear: a person was killed. Whether drunk or in a state of rage, there is going to be prison time (for manslaughter or second degree), unless adjudicated as mentally not responsible….

      Sexual assault would be the same IF the evidence were clear. Most of the time it is not.

  5. I appreciate the efforts to tackle the problem of rape- but not sure how much it will do to deter actual rape, which is the problem. That said,I am hoping all this discourse and legislation should make the problem known for what it is- and hopefully that will create behavioral change so that the number of rape incidents go down.

    • I hope so too!

      Maybe once guys understand that a “yes” is required, maybe they will be more careful. And as you say, maybe the discussion alone will help educate.

    • Yes, an ounce of prevention is worth a pound of cure. Laws can only go so far but education and prevention are by far the most effective tool. What could help prevent people from seeking out forms of control? What truly leads to such a high importance placed on sex? It’s such a pervasive thing in our culture and the priority upon it doesn’t seem in balance with the importance of so many other things that affect our daily lives. I suppose there’s some mystery to it, esp. to younger people and that makes it more tempting than the actual pleasure received. The axiom “people want what they can’t have.” Most other things are attainable without consent and therefore easy to get, but sex is one of the few things that requires permission, trust, and willingness to be intimate with another person. But then even that isn’t relevant when the act isn’t about sex but about control. We do live in a society where it can be easy for people to feel powerless and helpless due to the “power structure”, a frequently flailing economic infrastructure, and so many other factors I couldn’t even begin to list. That’s one of the reasons I wish I’d learned some basic meditation concepts when I was younger. I think there’s something to be said for teaching children to focus on the positive, that worrying about things beyond one control is pointless and only leads to frustration, etc. I didn’t begin learning about meditation until six years ago. I’m 41 now and I find that trying to change the “worry habit” would have been a lot easier if I’d learned it as a youngster. 🙂

      I’m not necessarily saying meditation is the answer, 🙂 but I think, as I’m sure many others do, that what we teach children goes a long way in how they will behave as adults. 🙂

    • I’m hopeful that this will be helpful.
      A. It will make it easier to prosecute rape cases. There are many cases where a woman is incapacitated from too much alcohol or predators get some women drunk till they are incapacitated and then have sex with them. Since the woman didn’t say “no,” it’s not viewed as rape by the “no means no” standard. So this makes it clear that absence of no doesn’t mean yes but only yes can mean yes.

      B. A lot of rapists don’t know they have committed rape. I believe most men hate rapists and don’t want to become one either but a lot of times many men don’t realize the act they’re taking part in is intact rape. A lot of men don’t have an issue with and even bragging about getting girls drunk and then having sex with them, convincing a girl who didn’t want to have sex with them into having sex, or going further than what she was comfortable with ect. Now these men would never brag and say he raped a girl. Them and their friends will most likely not find that cool at all! However they still brag about the act of raping, witness it and/or even encourage it without knowing that is rape. Hopefully this law will change the culture so having sex with an incapacitated person or through any form of coercion will mean they’re not participating in sex but RAPE. Many guys love to, brag about having sex and help their friends get laid, even if it’s achieved by having sex with a girl who they know is too drunk to know what she’s doing, or having sex with a girl who they know isn’t into it, or getting her to take part in sexual acts they know she isn’t enjoying, but they don’t see what they’re doing as rape unless the girl says fervent no. I believe if those men learn that this is what rape is then they won’t want to take part in such behavior, they will also not be cool with their friends taking part in this behavior and I think this law can help with that. This obviously won’t solve the problem completely but I think it will help educate students about consent, that an absence of no does not mean yes and without enthusiastic consent from your sex partner the act is rape.

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