Last September, California Governor Jerry Brown signed a new law mandating that California universities take certain steps regarding their sexual assault policies.  Many of the changes are common-sensical, i.e., a student who is intoxicated or asleep cannot be said to have “consented” to sex.  (This might seem like a no-brainer, but you would be surprised how many people wonder about that).

But the law, which went into effect a couple weeks ago, is not without controversy.  Most notably, it contains a clause which states that there must be “affirmative, conscious, and voluntary agreement to engage in sexual activity.”  It is more commonly known as the “yes means yes” standard, in which consent for sex has to be explicit. “Lack of protest or resistance does not mean consent, nor does silence mean consent,” the law says.

Libertarians, naturally, went ballistic over the law.  More government intrusion, they cried.  Now the government is regulating how students are supposed to have consensual sex, they screamed.

Many liberals agree that the law is intrusive.  But they are divided over whether the intrusion is good or bad.  As Ezra Klein at Vox puts it, “If the Yes Means Yes law is taken even remotely seriously, it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and this is also the case for it.”

In other words, yes, it is a terrible law because it is intrusive, and yes, it is a good law because intrusiveness is the point.

It’s quite true that the law won’t stop rapists who will simply say (as they do now) that they had “affirmative consent”.  Instead of “he said, she said” fights over whether she said “no”, there will be “he said, she said” fights over whether she said “yes”, as critics point out.

And even a third criticism of the law is that it encourages harassment.  As some have quipped, if affirmative consent is the touchstone, then “50 Nos and a Yes…. Means ‘Yes'”  In other words, a “no” no longer ends the discussion.  But with the new standard, a women can be pursued and harassed until she submits with a resigned “yes” (if ever).

These are all valid criticisms.

But the intent of the law is to get college-age men to stop and think about whether they have consent.  They need to know that they can no longer rely on silence or ambiguity.  And while that may be a small step forward, I think there’s a good argument that any step is welcome.

That said, here’s my problem with the “yes means yes” standard: it assumes that men have a problem understanding “no means no”.  And I don’t believe that.  Neither do many others.  As Amanda Marcotte writes:

Men who have sex with non-consenting women know full well that they are having sex with a woman who doesn’t want it. No one rapes by accident. They just pretend, after the fact, that they didn’t know she was non-consenting in order to confuse the issue. See this classic piece by Thomas MacAulay Millar at Yes Means Yes, regarding research that shows that men have zero problem understanding the difference between someone saying “hell yes” and someone saying “I’d rather not”, even if those ideas are conveyed through “soft” language or even body language. The man who sticks his dick in a woman who is asking if she can go home now or trying to put her clothes back on or pulling her body away knows full well that she is not consenting. He is not confused. He just doesn’t care.

I think that’s probably right.  Most men are not stupid.  The myth of the “accidental rapist” — the guy who misread the lack of consent — is just that: a myth.  We get the clues when a woman isn’t interested.  We get them even if the woman doesn’t say the magic word “no”.  It’s just that bad guys don’t care about “no”.  And those same guys aren’t going to care about the lack of “yes”.

So if the issue is removing ambiguity for consent, “no means no” works.  As long as “no” is said, that is, which brings me to an illustrative story:

Several years ago I spent a week in Costa Rica with a girl I was dating at the time.  One morning, she went down to the beach by herself.  Less than an hour later, she came back breathless with a harrowing story to tell.  As best I can recall, this is what she said happened: She was collecting shells on the beach when this “local” came along and started helping her.  There was some hugging involved, which she dismissed as cultural friendliness.  At some point, they left the beach to go up to the treeline, where they sat and talked (although apparently not much, since he didn’t speak English and her Spanish was limited).  He began to massage her arms; he began to massage her cleavage. Then he said something about going to get some weed, and he would come back and they would smoke it together and carry on.  So he got up to leave, and that’s when she made her escape (if I recall, he tried to cut off her escape, but she eventually found a path away from him).

Now, as an important aside, I should point out that this girl was a lecturer on the subject of self-defense for women.  She actually went to college campuses and held seminars about sexual assaults and how to defend yourself.  So you can imagine that I had a hard time understanding the details of her story.  How, for example, did things get to the point where he was massaging her arms?  Why didn’t it stop there?  Was he overpowering her?  (No, he wasn’t)  Did she say “no” verbally, or by pulling away?  (No, she didn’t).  What did she do as he was rubbing her chest — smiling?  (She hemmed and hawed)

I may have missed a fact or two, but the key point — which was made more clear when she retold the story — is this: she didn’t say “no”.  Not by words.  Not by subtle gesture.  Nothing.  And that (naturally) confused me, because my assumption was…. if she didn’t even TRY to say “no” in any way shape of form, and she wasn’t being overpowered, and she wasn’t drunk or incapacitated, and she does this stuff for a living, then it really looks like she must have wanted it.  And I (unhelpfully) accused her of that.**

She insisted that wasn’t the case.  She was thinking “no”, but fully admitted that she didn’t say  “no”.  She didn’t do anything to indicate disinterest.  Naturally, I asked her why.  She answered me with a string of excuses… “I didn’t because I didn’t want to be rude”; “I didn’t because the situation hadn’t gotten critical yet”, and even “I didn’t because I thought it was a cultural thing”.  On and on.  All kinds of reasons for her NOT to speak up.  All kinds of reasons to let him continue with his behavior.  What gives?

But it wasn’t to be my only exposure to the not-saying-no issue.  Another friend of mine teaches physical education to junior high girls and reports the same thing.  These girls go to parties and boys start to pay attention to them (which these girls, understandably, like).  But then the boys, being boys, get frisky, and maybe the girls get more attention than they are comfortable with.  But they don’t have the skills to say “no”.  Or even, “I like it better when we just kiss” or whatever.

So now, my phys ed friend does a unit in her physical education class on assertiveness — something different from self-defense (which, while important, only comes into play when you are in trouble). She teaches how to avoid trouble in the first place, i.e., how to communicate effectively to a guy that he needs to “downshift”… without severing whatever good time you might be having with him and without making a scene.

Others who work with girls in high schools report the same thing:

Our IMPACT Personal Safety instructors, who teach at private high schools around Southern California, see a majority of girls who, at the beginning of our boundary-setting lessons, don’t want to hurt the feelings of the boys who ask them out or initiate sex.

Some women never learn this.  We live in a society where men can be assertive, but if a woman asserts “no” — even in a polite subtle way — she’s cold and/or a bitch.  Some women don’t like to put on the brakes or “hurt someone’s feelings.”

I believe that was the trap that my ex fell into when we were in Costa Rica.  Smart as she was about physical self-defense in the face of a full-on assault, she was an amateur about being assertive in the face of an everyday unwanted advance.  She was trained (and taught) in a world of fight-or-flight; but was clueless in situations dealing with the more mundane situation of a guy coming on to her — a situation which could have been easily defused without fight or flight.  So what happened instead?  Rather than listen to her feelings which (according to her) were saying “NO”, she made excuses — bad excuses — for HIS behavior (oh, it’s his culture; oh, he’s being friendly; oh, don’t make a scene) — as if those things were more important than her discomfort about a stranger’s unwanted physical advances.  And THEN she found herself in bad situation (which, fortunately, she handled with aplomb).

So obviously, politeness is NOT more important than unwanted advances.  But many women grow up learning differently.  It is implicitly taught.

“Don’t make a scene.”

“Don’t overreact.”

“Don’t be that girl.”

We see this all the time.  Take a young woman who wants to go out to a bar with her girlfriends.  She wants to be friendly and gregarious.  She’s fine with meeting men, and striking up a friendly conversation with them.  But it often happens that….

there sometimes comes a point in a conversation with a man where it becomes necessary to draw the line and indicate that you are in no way, by any means, at all interested in pursuing anything further. There are also times when it is clear that friendly conversation is not in the cards (i.e., those men who substitute grabbing your hips and attempting to “dance” with you for a polite introduction).

That’s Alicia Lynn Eberhart at Luna Luna in an article entitled “Stop Saying I Have A Boyfriend” (a great read, including the comments).  The article goes on about the various “inventive” ways that women go about saying “no” without saying “no”:

If you do a Google search for “how to avoid being hit on at a bar,” you’ll get several articles with “helpful” tips on skirting conversation with men you are not interested in. The majority of these list pretending to have (or actually having) a boyfriend/fiance/husband as the number one method for avoiding creeps (second to “pretending to be a lesbian” or “pretending to be crazy,” a la Jenna Marbles). In response to my complaints about men creeping on me at dance clubs in college, an ex-boyfriend of mine used to get cranky that I refused to whip out this cure-all excuse (one of many reasons he is an ex).

And she concludes with:

So what can we do? I think the solution is simple–we simply stop using excuses. If a man is coming on to you (and you are not interested–if you are, go for it, girl!), respond with something like this: “I’m not interested.” Don’t apologize and don’t excuse yourself. If they question your response (which is likely), persist–”No, I said I’m not interested.”

I think any discussion of empowering women has to take this approach. California’s Yes Means Yes standard is fine if only because it makes men “tune in” and puts them on notice.  And it is probably fine for women who, sadly, are unable to say “no”. And it’s fine on college campuses, but you can’t make that a real world thing.

More importantly, as Thomas MacAulay Millar writes, men DO know when women say “no”, even when women use subtle clues.  If that’s true — and I believe it is — then all women have to do is learn how to say “no” without making excuses or making apologies.  And ideally, I think that’s what we want — empowered women who know they CAN say no instead of passively acquiescing to men treating them in ways they find objectionable.  Men should be held accountable, which means that women have to hold men accountable as it is happening.

The bad men are counting on the fact that women won’t make a scene.  They are counting on the fact that women won’t be impolite.  That’s how achieve their conquests in the first place.”

UPDATE: It’s been suggested that when it comes to the Costa Rica woman, or the female students of my gym-teacher friend, that I am blaming the victim.  I’ll cop to the plea of being an unclear writer at times, and if this is one of those times,then I apologize.  I won’t edit what I’ve written, but I will add this update.

This post is about the rape culture.  I discuss empowering women, and what we teach our girls.  In doing so, and by focusing on women’s behavior, I certainly am not saying or even implying that women in general – or any woman in particular — bear responsibility for the culture we have, or the situations in which women find themselves.  Anyone who knows me knows where I stand on these issues.  Still, let me not mince words and reiterate: the men/boys discussed here are responsible for their behavior.  They are the ones accountable.  The victims described here are just that: victims — women and girls placed in a position that they should never have to be placed in, and it goes all the way from boorish behavior at a bar to outright physical assault.  We talk about women saying “yes” or “no” or doing THIS or doing THAT, but that does not and should place responsibility (and its cousin, blame) on any woman for what she does (or doesn’t do) in those situations.  The men are responsible and (as I stress) they KNOW what is going on.  They are not clueless.  Period.  Full stop.  If you are reading this differently, then chock it up to my poor writing abilities, and nothing else.

** I wasn’t going to mention this, but since my ex has made it a personal issue, thereby ignoring the whole point of the post, I’ll inform whoever reads this that there were many other factors at play during this time. Any pre-judgment of my actions is just as unkind and ill-informed as any pre-judgment of her actions. I will also add this: when it comes to integrity, infidelity, and infidelity-blaming, a person who does not occupy the moral high ground would be wise not to throw stones.