“Yes Means Yes” Law: Anti-Woman, Anti-Sex

Sex and Consent on Campus

Amid an ongoing debate over sex and consent on college campuses, in September California passed “affirmative consent” legislation, which was followed by a slew of similar initiatives nationwide. The pretext is to curb a purported epidemic of sexual violence and have college administrations come clean on reporting sexual assault complaints. But legislating one form of consent as the only acceptable variant and branding all else as assault—as these new policies do—means that these administrations now have even greater power to enforce what is acceptable sexual activity among students.

The new California code, known as “yes means yes,” dictates that “affirmative, conscious, and voluntary agreement” must be ongoing throughout an entire coupling. Acts without explicit agreement or while under the influence of drugs or alcohol are not considered consensual. As many young students are unskilled at both sex and drinking, this combination often results in morning-after misgivings and bad hangovers. In an American Spectator article online titled “In California, Every Love Scene Ever Filmed Is Rape” (2 October), one commentator aptly captured that state lawmakers have made “every drunken collegiate hookup a potential sexual assault.”

Like the “date rape” frenzy in the 1990s (see article, page 7), the current campaign invites campus bureaucrats into the bedroom to poke, pry and criminalize a range of customary sexual activity—from intoxicated make-out sessions to miscommunicated caresses or overly zealous groping. Regimenting sex is a morality drive, and laws dictating affirmative consent give the campus sex police an even freer hand to say what is immoral, much like former U.S. Supreme Court Justice Potter Stewart’s standard for pornography: “I know it when I see it.” Campus administrations, government out of the bedroom!

What might be in store for students is shown by a case from Occidental College in Los Angeles. In September 2013, after a day of binge drinking, two heavily intoxicated freshmen planned to have sex, exchanging text messages about having a condom. The next day, neither could recall what happened. The young woman was told by a sociology professor that she had been raped, evidenced by her difficulty sleeping and because the man “fit the profile of other rapists.” In police interviews, witnesses said both students were willing participants exercising bad judgment. But Occidental’s investigation determined that he violated school policy because she was drunk, i.e., he failed to recognize that her drunken consent was meaningless. Occidental found him guilty of sexual assault, rejected his appeal and expelled him. As a result of this botched one-night stand—details of which are in an 82-page report online—both lives are ruined. She dropped out of school and he has been rejected by other colleges and stigmatized as a rapist.

The suggestion that a misunderstanding—or for that matter, bad or unpleasant sex—is equivalent to rape is not only ludicrous but dangerously trivializing of actual sexual violence. Human sexual behavior is certainly complex, but it is not one broad continuum from the innocuous hookup to violent rape. Rape is a heinous crime of degradation and terror whose victims have every right to legal recourse. One much-discussed article in New York magazine (21 September) on student activists “starting a revolution against campus sexual assault” captures the effort to make all sexual acts suspect: “Frustration with hook-up culture is undeniably a part of the anti-rape movement. In some activists’ ideal world, there might be no trial, on campus or elsewhere, but instead a simple presumption of guilt.”

For us Marxists, the guiding principle in all sexual relations is that of effective consent, meaning nothing more and nothing less than mutual agreement and understanding, as opposed to coercion. The social norms surrounding sexuality—colored by shame, fear and religious mores, not to mention gender, class and racial inequalities—can complicate matters. But as long as those who take part agree at the time, nobody else, least of all the state, has the right to tell them how or if they can do it.

Sexual violence is an extreme reflection of the degraded status of women in this decaying capitalist social order. More often than not, going to the authorities who enforce that order, whether it be the police or the campus administration, adds more trauma on top of the sexual assault itself. It is a reflection of entrenched anti-woman bigotry that those looking for redress are subjected to indifference or “blame the victim” humiliation, or pressured into recanting.

The “yes means yes” campaign will do nothing to curtail actual rape, let alone address the social degradation and abuse perpetrated daily against women and children under this class system. Instead, the capitalist rulers have seized on the campaign to drum up fears among the population while reinforcing obedience to god and country and bolstering the bourgeois order. Whipping up social anxiety diverts attention from the madness of society, with deteriorating schools, massive unemployment, a failing health care system and perpetual war.

From an early age, youth are instilled with fear and loathing about sex—through everything from “abstinence only” moralism to “marriage is forever” straitjacket monogamy. As if getting past high school weren’t already difficult enough, the university administration and bourgeois state intervene as the guardians of moral order, infantilizing young adults who might just want to have fun. Crackdowns on harmless things like sexting or intergenerational relationships are a component of broader social regimentation, as are increasing restrictions on access to contraception and the rollback of abortion rights.

Sex, Race and Regimentation

To prove there is an epidemic of rape on campus, media outlets and activists recycle the deceptive statistic that one in five female college students is a victim of sexual assault. That statistic, which was obtained through dubious calculations and unclear questionnaires, counts regrettable or confusing sexual encounters, that is, the “gray area,” as assault. Over half of MIT students in a recent survey thought it possible for rape to “happen unintentionally,” i.e., by accident! The one-in-five figure is the same that was retailed two decades ago when campus “Take Back the Night” rallies were all the rage. College campuses are not the epicenter of rape in the U.S.; one need only look at the military or cops, institutions of the state, to find rampant sexual abuse.

A current hotbed of the campus “anti-rape movement” is Columbia University, where senior Emma Sulkowicz has gotten media attention for her Carry That Weight mattress project. Sulkowicz carries a mattress with her around campus to dramatize that the male student she alleges raped her has not been expelled. We do not know what happened in the incident in question. But after the fact, her experience reporting to cops and campus investigators appears to have been harrowing and patronizing, as is typical.

Sulkowicz’s case is the central focus of the group No Red Tape, which cosponsored an October 29 “Carrying the Weight Together” national day of action. Among the chants that day at Columbia was “rape culture is contagious,” conflating general sexist behavior or ideas with rape. Protesters also called for university president Lee Bollinger to “be the leader on our side.” Top campus officials are the people who oversee the exclusion of black and Latino students, persecute leftists and pro-Palestinian activists and put the squeeze on campus workers.

The pseudo-socialists of the International Socialist Organization, who tail anything that moves, are heavily active in No Red Tape. These reformists tout the need to “hold administrations directly responsible” while celebrating the fact that the demonstrations have brought “welcome attention” from the White House (socialistworker.org, 2 October).

In fact, from the outset the “offensive against campus sexual assault” has been pushed from the top. Obama recently set up a White House task force on the matter and enlisted Hollywood stars to take an “It’s On Us” pledge. In 2011, the federal government released a “Dear Colleague” letter to university administrations setting a lower standard for the burden of proof, so that a student can be disciplined for something that was only more likely than not to have occurred. The Department of Education has more than 70 colleges under federal investigation for mishandling cases alleging abuse. Colleges that do not put forward the proper sexual consent rules under Title IX are threatened with losing funding.

Title IX, which outlaws gender discrimination in federally financed institutions, was enacted over 40 years ago, like many other reforms ushered in by the social struggles of the civil rights and Vietnam antiwar movements. Title IX not only benefited women’s participation in sports, but also opened doors to other educational programs and facilities. However, all reforms under capitalism can be reversed or perverted to serve a different purpose than intended.

The cast of characters backing this campaign is evidence in itself of the campaign’s repressive agenda. Take Janet Napolitano, former secretary of homeland security, top sheriff of the “war on terror,” now serving as University of California president. Napolitano demonstrates her touching concern for students by pushing a zero-tolerance policy toward sexual assault while jacking up tuition at the ten UC campuses.

Before his recent re-election as New York governor, Andrew Cuomo pushed for State University of New York campuses to adopt a uniform consent policy similar to “yes means yes,” and he now intends to codify that standard as state law. Democratic Party politicians package these new policies as advancing women’s rights (while, of course, barely lifting a finger to defend access to abortion or birth control). Posturing as “friends of women” is made all the easier by right-wing misogynist pundits, who consider women vessels to produce babies.

Some conservatives have noted the usefulness of the campus anti-sex campaign in promoting neo-Victorian modesty and chivalry, which fell out of favor with “sexual liberation.” Meanwhile, many people rightly oppose the ominous overreach of affirmative consent. Harvard’s latest sexual harassment policy came under fire from 28 of the university’s current and retired law school professors because it lacked “basic elements of fairness and due process” and was “overwhelmingly stacked against the accused.”

Hailing the California law is old-school feminist Gloria Steinem. Preaching that “silence is not consent; it is the absence of consent,” Steinem welcomes a rule that “redefines that gray area” between yes and no (New York Times, 4 September). Offering perhaps the most blunt—but demented—rationale for affirmative consent laws is Ezra Klein of the online news site Vox, who remarked that “yes means yes” legislation is “terrible” but “necessary”! Presenting males as predators with an unrestrained libido, Klein wants all men to “feel a cold spike of fear when they begin a sexual encounter.” Klein’s preferred sexual “culture” more closely resembles a scene from the Inquisition.

For Klein, a conscious policy of false accusations and convictions is a good thing. He accepts that innocent men are collateral damage, and in this racist capitalist society black men in particular will be on the receiving end. Accusations of rape have long been used to justify lynch mob “justice” and railroad black men to prison. In 1931, the Scottsboro Boys were framed up and imprisoned for rapes that never happened; in 1989, the Central Park Five were falsely convicted and thrown behind bars for the rape of a jogger in New York City.

Frenzy about black male sexuality is a common thread in American culture. The recent viral Hollaback YouTube video documenting “catcalling” in NYC was edited so that it showed no white males, only dark-skinned men. The clipped segments of a white actress being leered and jeered at while walking down the sidewalk treats non-threatening and threatening behavior equally, from being greeted with “How you doing today?” to being followed. Rightly chastising Hollaback’s portrayal of black and brown men “as congenital predators,” Liliana Segura noted in an Intercept article (3 November): “That this viral video had, in the span of five days, sparked such a sense of crisis that people would push for a legal ban on street harassment was, to me, the most damning indictment of its race politics.” In a city infamous for “stop and frisk,” any such law will only lead to more criminalization of minority youth at the hands of police thugs.

It is wrong in any case to place the burden of women’s oppression—of which daily discrimination such as sexual harassment is but a reflection—on the behavior of individual men. Sexist stereotyping and attitudes flow from women’s subjugation in the patriarchal family, the main social source of women’s oppression. Together with religion, the family serves as a key prop of the capitalist system: it instills subservience to authority and promotes a puritanical morality against anything that deviates from the family ideal—from premarital sex to gay sex. Working-class women shoulder a double burden, exploited at work and responsible for household drudgery and child rearing. The low status of women in this patriarchal society can only be ended through socialist revolution.

Feminist Puritanism and the State

It’s bad news when the ruling class is worried about what people do in their bedrooms. Anti-sex panics serve to bolster social conservatism and reinforce the family. In the 1980s and ’90s, people were force-fed the lie that there was an epidemic of child molestations and ritual abuse of children, with sexual predators supposedly lurking behind every teacher’s desk. Today, thousands of those engaging in private activities that do not harm anyone—such as possession of child porn—are criminalized as “sex offenders.” False allegations of sexual abuse have destroyed lives, torn up families and led to suicides.

In moral crusades against pornography, prostitution and youth sexuality, feminists have consistently found themselves in bed with the enemy of women: the state. Feminism works inside class society, seeking to give bourgeois and petty-bourgeois women a chance to compete in the male club of power and privilege. Feminist ideology presents women in a state of perpetual victimhood, needing government “protection.” Far from “empowering” them, feminism keeps young women activists wedded to the very puritanical and repressive order that oppresses them.

As Marxists, we have always been outspoken opponents of anti-sex hysteria and state intrusion into private life. However, we do not offer a program on how to untangle the complexities of sex under capitalism. As we stated in our article titled “Rape and Bourgeois Justice,” (Young Spartacus No. 29, February 1975): “Only in a workers state will men and women stand in full equality before the law, the administration of which will be a part of the creation and maintenance of the social fabric of well-being for the population as a whole.” And while we cannot spell out what sexual relations will look like in a society liberated from religious anxieties and racial and class inequities, we know they will be far better.