Vox editor-in-chief Ezra Klein waded into the debate over "Yes Means Yes" affirmative consent laws Monday, signalling his complete support for California's SB 967 even though it is "a terrible law," in Klein's opinion.
That may seem like contradictory thinking to all of us non-wonks, but he does explain it:
It tries to change, through brute legislative force, the most private and intimate of adult acts. It is sweeping in its redefinition of acceptable consent; two college seniors who've been in a loving relationship since they met during the first week of their freshman years, and who, with the ease of the committed, slip naturally from cuddling to sex, could fail its test.
The Yes Means Yes law is a necessarily extreme solution to an extreme problem. Its overreach is precisely its value.
What's the extreme problem? The supposed epidemic of campus rape, which Klein claims—repeatedly throughout his article—impacts 1 in 5 college women. Whatever the problems with SB 967, they should be set aside in service of the goal of minimizing campus rape, he writes:
The Yes Means Yes laws creates an equilibrium where too much counts as sexual assault. Bad as it is, that's a necessary change. A culture where one-in-five women is assaulted isn't going to be dislodged with a gentle nudge.
Let me get this straight: Any piece of legislation is worthwhile, no matter how terrible it is, as long as it has the goal of decreasing rape? I thought Vox was supposed to be the home of smart, number-crunching journalism, where experts evaluate the actual effects of policies instead of merely rubber-stamping their goals? Alas.
Klein should recognize the myriad ways in which he is possibly, or even likely, wrong. First of all: who is to say that "Yes Means Yes" will actually decrease instances of sexual assault? The law's main function is to push colleges to investigate and adjudicate sexual assault based on a narrower set of standards and without recognition of established due process rights. Given the track record of campus rape trials, there is little reason to think colleges will excel here. I predict more lawsuits—from both accusers and the accused—and similar levels of sexual assault. The heavy hand of government does not automatically and instantly change culture in the manner that central planners envision.
Furthermore, the 1-in-5 statistic is hotly contested, as Klein surely knows. (See The Washington Examiner's Ashe Schow and American Enterprise Institute's Christina Hoff Sommers for thorough debunking.) That statistic was produced by a survey of just two colleges; the survey had a high non-response rate, and critics contend that victims of sexual assault were more likely to respond in the first place, skewing the results. The 1-in-5 statistic is also out of whack with national figures: just 1.3 in 1,000 people age 12 and up are victims of sexual assault nationwide, according to the Bureau of Justice Statistics.
Again, if doing something—anything!—about campus rape is only necessary because the rape rate is an absurdly high 1 in 5, then Klein better be damn sure about that statistic. Plenty of other experts who have considered the matter at length are not.
Klein's do something at all costs approach is also an indictment of the modern left's warped priorities and callous disregard for due process. Safeguarding the rights of the accused was once a cardinal virtue of civil liberalism. But for many so-called progressives, paranoia about sexual violence trumps all other considerations. They have much in common with the tough-on-crime conservatives of past decades, in that respect.
More from Reason on Yes Means Yes here.