A Feminist Says ‘No’ to Yes-Means-Yes
As a lifelong, hardcore feminist—not to mention the mom of a teenage girl—I know I’m supposed to be overjoyed by passage of California’s SB 967, the law that enshrines a “yes-means-yes” consent standard for sexual assault on college and university campuses. (You’ve got to confirm your partner’s active consent throughout a sexual encounter, or the facts will support a sexual assault claim.
I want to be happy. It feels like forever since feminists have had a win. Still, I can’t help but dislike this bill entirely.
How did we get to a place where we uncritically celebrate a law meant to enhance justice for survivors of sexual assault, but only if they’re enrolled in a college or university?
Let’s start by acknowledging: college women are at no greater risk of sexual assault than other women their age. Given the reporting, you’re probably tempted to dismiss that assertion out of hand, but check it out. Rely on nearly any set of measures you’d like. As tricky as sexual assault stats can be, the evidence is nearly uniform on this point. Campus women aren’t at greater risk than their non-academic sisters, they’re just more aggregated in space.
So how did we get here? There are a number of explanations, but ultimately the only reason we need to rethink campus policies on sexual assault in the first place is that campuses are permitted to adjudicate them.
For far too long, residential campuses have been permitted to act as little, make-believe municipalities, complete with their own quasi-judicial processes, staffed by faculty who just love the buzz of the solemnity of getting to play judge.
When I try to envision a campus sexual assault proceeding, I flash on the case of a kid at a “living learning” program where I used to teach. After an RA busted him for trouble in the dorms, he distributed hundreds of copies of a disordered, rambling tract targeting her. He promised to get stray dogs to urinate all over her. He declared “open f-cking season on dumb tw-ts now” (a threat with a little extra oomph, coming from a burly guy who dressed in full combat fatigues).
The RA was terrified and terrorized—forced to flee the dorm that was both her housing and her job site.
This wasn’t a sexual assault, but the program’s response was telling. Was the guy arrested? Put before a disciplinary board? Subject to a mandatory psych eval? Did the RA receive some form of protection? Was she given a say in how the problem was handled?
The answer, as far as I could ever learn, was no on every count.
Administrators seemed anxious to keep things in house. The program was under scrutiny for its high costs and persistent crises. A senior faculty member had recently racked up his second reprimand for sexual harassment. The last thing anyone wanted was another black eye.
Faculty sentiment also ran decidedly against formal discipline, which may have led to expulsion given the student’s “priors.” Rationales for were varied—one prof simply maintained there was no way this kid could be a threat because: “I’ve had him in several classes, and he’s always been very quiet.” (No, seriously, that’s what he said.) Of course, “this kid” was white. Does anyone buy for a minute that a burly black dude who dressed like a sniper could plaster his college with vows to torture and kill a white female RA and walk away with no repercussions…because he was quiet in class?
Now consider: these are the same folks assembling with all sense of seriousness to judge sexual assault claims on campuses. Don’t get me wrong, people with PhDs are probably no less likely than the rest of the population to be thoughtful about gender, violence, and race when confronting real-life conflict; but let’s not kid ourselves—they’re not liable to be more.
Administrators are, meanwhile, directly, materially tethered to the reputations of their institutions. No one who understands this should be surprised to learn that sexual assault adjudications are often delayed till the aggressor graduates or the victim drops out.
The cosplay that is campus criminal justice was simply never about valuing women’s lives in the first place. It’s always been about protecting institutions.
So what to do?
A far more productive fix than state-by-state replication of California’s SB 967 would be to pass federal legislation dismantling campus criminal adjudications altogether, along with the state and federal programs that lend them legitimacy and gravitas.
So many high-powered California campuses—not to mention ones like Yale that are headed toward yes-means-yes of their own accord—sit in or adjacent to neighborhoods with spectacularly high sexual assault rates. Rather than wasting time managing pretend-judicial systems, they should direct their formidable resources to improving community-based access to rape crisis advocacy, which research suggests would do far more to help survivors than new consent standards ever could.
Community-based advocacy can also open spaces where diverse groups of women can recognize their common challenges and threats—as well as their common, uncommon strengths. It can even help to build that thing called solidarity, so conspicuously lacking in American public life.
The suggestion that students should bring sexual assaults directly to the police tends to provoke a kind of spluttering outrage. After all, if not uniformly hostile to victims, the police, DAs, and courts are notoriously uneven, depending on their culture, training, resources, and leadership. Why subject college students to their brand of justice?
The real question is, why shouldn’t student victims of sexual assault turn to the real police and the real courts for help? These are the institutions to which the rest of us have to turn, as will the women of Berkeley and UCLA on graduation. Yes-means-yes as a cultural project is one thing. But state support of alternative tribunals for advantaged populations only siphons off political pressure that is needed to reform the real-world institutions we need to work for all of us.