Americans tend to cherish liberal values, at least until we face frightening and morally outrageous threats, at which point they often give way. Liberals can be acutely aware of this dynamic when the threat involves, say, terrorism, but only sporadically so when the threat involves something like rape. Judith Shulevitz has a powerful story describing the kangaroo court methods of justice used to prosecute sexual assault on college campuses. For instance, “at Harvard, the Title IX enforcement office acts as cop, prosecutor, judge, and jury — and also hears the appeals.” Harvard Law School professor Janet Halley tells Shulevitz that these procedures are “fundamentally not due process.”
Obviously, universities aren’t trampling due process because they hate due process. They’re doing it because they hate campus rape, of which there is (unlike terrorism, it should be said) an awful lot. For various reasons, including the long stalemate in Washington, the movement to confront campus rape has shot up the list of liberal priorities. One can detect in this movement an impatience with balancing risk against liberty that, in other contexts, would be readily recognizable as a tone of creeping illiberalism.
The current flashpoint for the campus-rape movement is a new California law requiring universities to impose a standard of “affirmative consent,” which deems as rape any sex that does not have explicit, ongoing permission. A history of prior sexual relations is not relevant. This is a novel approach with unforeseen consequences, and experts don’t know whether it will work. (“In a lot of places, there is little to no evidence behind the measures being taken,” said Jane Stapleton, a specialist in campus-assault prevention. “That doesn’t mean they won’t work. It means we don’t know.”) Other states may soon follow suit. The substance of the law itself has less significance than the intellectual flavor of the arguments marshaled on its behalf.
The coverage in Vox — whose coverage of domestic politics and economics is grounded in empiricism — is a telling signpost of the current mood on the mainstream left. Stories by Amanda Taub and Jenee Desmond-Harris sweep aside all objections and ignore the qualms of experts in the field in order to ridicule opposition (the law’s critics, according to Taub, “apparently believe that genuine consent is too significant a burden to place on the pursuit of sexual pleasure”). More stringent still is a column by Vox co-founder Ezra Klein, one of the most intelligent and evidence-based analysts of American politics. Unlike his colleagues, Klein does not wave away the possibility that California’s law might encounter operational snags if students fail to change their sexual practices to comport with the state’s stringent standards. Instead, he acknowledges the downsides but accepts them as “a necessarily extreme solution to an extreme problem.” He concedes that it will result in more innocent people being prosecuted by universities as rapists, and that the miscarriages of justice it yields are not merely an acceptable price, but actually a positive result:
To work, "Yes Means Yes" needs to create a world where men are afraid. ...
Critics worry that colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations. Sadly, that's necessary for the law's success. It's those cases — particularly the ones that feel genuinely unclear and maybe even unfair, the ones that become lore in frats and cautionary tales that fathers e-mail to their sons — that will convince men that they better Be Pretty Damn Sure.
Read that passage again. He is not merely arguing that, to make an omelette, one must break some eggs. He is arguing for false convictions as a conscious strategy in order to strike fear into the innocent. This is a conception of justice totally removed from the liberal tradition.
Ezra Klein is not a nut; he is the polar opposite of one, which is what makes it so important that he is arguing in such expressly illiberal terms. Of course, campus justice need not contain all the safeguards of a criminal proceeding. But since they are a quasi-judicial procedure, and often held explicitly in lieu of formal police charges, we might expect them to at least broadly reflect our expectations of justice.
“A culture where a frat thinks it's funny to throw a party with signs that say 'No means yes, yes means anal' won't fall without a fight,” he concludes. “Ugly problems don't always have pretty solutions.”
The reference to the fraternity that threw a party displaying a “No means yes” sign is meant to show the depths of the cultural rot, and the necessity of taking radical and even illiberal measures to stop it. But if you follow the link, you could more plausibly draw the opposite conclusion. The fraternity, at Texas Tech University, quickly agreed to join a sexual-assault-prevention program and subsequently had its charter revoked by its national organization. This would seem to raise at least the possibility that the culture will fall without a fight, and that steady, progressive cultural change can actually work as well as, or even better than, fear and injustice.
No, as a famous non-liberal put it, the revolution is not a dinner party. “But American law rests on the principle that individuals have rights even when accused of doing bad things,” writes Shulevitz. “American liberalism has long rejected the notion that those rights may be curtailed even for a noble cause.”
Update: Over at Salon, Katie McDonough -- who is "Salon's politics writer, focusing on gender, sexuality and reproductive justice," or possibly one element of Salon's patented software program that searches the web for content related to race and gender and then auto-generates text insinuating race and/or gender bias -- replies. According to McDonough, it is just a little suspicious that my piece engages in greater detail with Ezra Klein than with other Vox writers:
Chait is ostensibly writing a rebuttal to a series of Vox stories that, to his mind, are emblematic of the “creeping illiberalism” of the law’s supporters. But he dismisses two of these three writers – Vox’s Amanda Taub and Jenee Desmond-Harris – straight out of the gate. ...
Chait has nothing to say to these women. (Women who some may also consider experts, since both have law degrees.)
But Chait does feel it’s necessary to respond to Vox’s Ezra Klein (who tweeted that Taub’s piece on the law “completely changed” his mind on the issue).
According to Chait, this, from Taub, is not worth engaging with...
Wait, what is Salon trying to say here? Can they spell it out? It's as if I'm being accused of something but I can't put my finger on it.
Oh, right -- sexism. Yes. Well, the reason I focused on Klein's piece is that his argument was explicitly illiberal in a way other arguments about the subject have not been. I'll just cut and paste the section above where I explained this in my original piece:
More stringent still is a column by Vox co-founder Ezra Klein, one of the most intelligent and evidence-based analysts of American politics. Unlike his colleagues, Klein does not wave away the possibility that California’s law might encounter operational snags if students fail to change their sexual practices to comport with the state’s stringent standards. Instead, he acknowledges the downsides but accepts them as “a necessarily extreme solution to an extreme problem.” He concedes that it will result in more innocent people being prosecuted by universities as rapists, and that the miscarriages of justice it yields are not merely an acceptable price, but actually a positive result...
Meanwhile, my column was very explicitly based on Judith Shulevitz's argument, which it quoted extensively at both the beginning and the end. Indeed I freely admit that applying her argument to new evidence. And yet Katie McDonough has nothing to say to that woman, but does feel it's necessary to respond to the man who is following in her wake.
Why is that? Hmm? Oh, maybe it's because different things make us us think of arguments in response and we can't assume a secret motivation based on a single data point.