It’s hard to blame Washington Post columnist Kate Cohen for making a basic legal mistake. After all, she’s no lawyer and her bachelor’s degree in comparative lit likely didn’t include much on the significance of mens rea. This is why she frames her post about sexual assaults around the “unintended,” even though an unintentional act cannot be an assault. And that’s why she goes so very wrong.
We are about to enter the Red Zone.
That’s the period between the start of the college semester and Thanksgiving break, during which more than 50 percent of campus sexual assaults occur.
This year could be even worse than usual, as students who’ve been trapped in their parents’ houses or sequestered in their dorm rooms throughout the pandemic are finally able to intermingle.
Is there anything we can do to keep these students safe?
It’s likely true that much of what’s currently characterized as campus sexual assaults happen in the first few months of college. That’s when kids get their first taste of freedom, away from their parents watchful eyes. They drink, sometimes heavily. They meet new people and feel the thrill of attraction. They have no one telling them to be home by 10 or be careful out there. They do things they may later regret. They always have. Whether being cooped up will make them especially wayward is hard to say, but it’s possible.
But this isn’t a phenomenon about boys or girls, but about college. Kids make poor choices because that’s the nature of kids. What can a mother do?
We could tell young women that they should drink less, dress defensively and use the buddy system.
But that message frames sexual assault as an inevitable event, like winter. Worse, it places on victims the burden of preventing assault and the blame if they don’t.
This has become one of the accepted inviolate excuses, that any expectation placed on women is “victim blaming.” It’s not wrong to point out that none of these things make a sexual assault any less wrong or the fault of the assaulter, but that’s assuming an assault is, in fact, an assault, an intentional act.
We could tell young men to be sexual only with people who clearly want to be sexual with them.
And there’s the rub. We could, and should, tell that to young men. And young women too, if one doesn’t presume that only boys are bad and girls are made of sugar and spice. But that begs the question of how a young man discerns the person who “clearly” wants to be sexual with him?
To that end, colleges around the country have been changing their sexual conduct policies to reflect the concept of affirmative consent — the presence of a “yes,” rather than the absence of a “no.” For sex to be consensual, there has to be a “yes” at every point; yeses should be strewn about like clothes on a dorm room floor. From one current college code of conduct: “Consent may not be inferred from silence or passivity.”
In the early days of “affirmative consent,” discussion was had at great length about how this bizarre notion would work. Kate Cohen appears to step into the fray post-fantasy, freed of any of the hard and often irrational beliefs of how kids “mingle,” not letting the million elusive details and problems, failures and misunderstandings, impair her fabulously simplistic grasp of campus sex.
Unfortunately, people can think right and still act wrong.
Act wrong to whom? This isn’t about a guy who intentionally sexually assaults a woman, but the boy who “thinks right,” like Kate Cohen’s two boys who will never be accused of wrongdoing, I’m sure. How is that possible? It may well be that the woman, whether in her secret heart or when she sobers up the next day, or when she finds out he doesn’t want to be her boyfriend, decides that her entirely enthusiastic engagement in sex, which she may even have initiated, involved the boy acting wrong. And yet, he thought right. How would he be expected to know, from her jumping his bones to her unzipping his fly to her pulling off her clothes?
The failing of affirmative consent isn’t about the guy who will intentionally sexually assault a woman, but the guy who “thinks right” but, at least as far as the woman is concerned, “acts wrong.” And that’s a failure of communication.
Affirmative consent was never about verbally saying the word “yes” constantly as nobody has ever done that in the history of campus sex. Imagine constant yesses, “strewn about like clothes on a dorm room floor,” as Cohen fantasizes. Nobody does this. Nobody has ever done this. Not the woman. Not the man, Nobody. Nor could anybody, given that a three second moan without a yes would be rape in Cohen’s fertile imagination. Did she consent to that thrust?
And it’s not a joke that even yes doesn’t mean yes, whether because the woman feels pressured and consents even though she would have preferred not to but kept it her own little secret, or because she had a couple beers or smoked a joint, even if without the guy’s knowledge, and enthusiastically said yes only to regret her choice later and be reliably informed that she got to take it back if alcohol or pot clouded her judgment.
But the real kicker is whether mom would rather have her newly freed child “unintentionally” sexually assault by a right-thinking boy who misunderstood a girl’s desires rather than do anything, take any responsibility, to not be sexually assaulted. Just as we don’t leave car keys in the Lambo, even though it’s not the driver’s fault if somebody steals the car, it’s still a better to take the keys than lose the Lambo.
So what can a mom do to protect her precious daughter from unintended sexual assault? Teach her to Just say no. The now-discredited “no means no” had the enormous virtue of clarity. While it wouldn’t stop a guy who intended to sexual assault, it will make it clear to the boy who “thinks right” that she doesn’t want sex. If that was really the societal point of all this, then put aside the insipid ideological excuses and return to “no means no.”
Otherwise, this is a trap and the real victim of this encounter is the boy who will be wrongly accused of sexual assault that never would have happened had the girl simply expressed herself as a responsible dancer in the campus tango.
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