Blog Credo

The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.

H.L. Mencken

Monday, October 13, 2014

Bad Laws Are Bad Laws

Klein argues that California's new law- that basically codifies the "Antioch Rules" from my days in college- is a bad law, but he supports it anyway, because we have to do something about college sexual assault.

The statistics are shocking about sexual assault on campus.  Maybe George Will doesn't think so, but they are.

So, California has a bill that requires consent at every stage of sexual behavior.  This is a legislative attack on behavior that needs to stop, but is ingrained, sadly, in college culture.  Drunken hook-ups are real and regrettable, maybe for both parties.  But they could now be crimes under this law.

While this is an attempt to create clarity in what is otherwise a murky situation, how exactly will it clarify the actual behavior?

Her: "I gave consent for kissing, but not fondling."

Him: "Yes, she did."

How exactly does that clarify anything?  The only way it does it to create a presumption of guilt on "Him" above.  And presumption of guilt is unconstitutional.

All the feelings of isolation and vulnerability that a woman feels now won't go away - unless the law operates under a presumption of guilt.

This strikes me as a well-intentioned act that overreaches. Not just constitutionally, but like Affirmative Action, it seeks to un-do a lasting social problem with a legal "quick fix".  You can't fix racism by establishing quotas or fact, you reinforce those prejudices.

In a world where we have people coal rolling to protest perfectly reasonably restrictions on pollution, do we really think that these laws won't engender a backlash against efforts to bring sexual assault under control?

I don't mean to suggest that criminal behavior shouldn't be made criminal by legal action.  But sexual assault is already illegal.  Laws haven't changed behavior as much as education can.

Ultimately, if you want to change the sort of sexual assaults that predominate college campuses - drunken licentious behavior that moves from flirtation to assault among people whose already diminished capacity for empathy and long range thinking is impaired by alcohol and drugs - then you have to change their thinking first.

I don't see a legislative mandate as working to change thinking.  I see it as a way for legislators to say they "did something" about the scourge of campus sexual assault.

And a bad law poorly enforced can be worse than no law.

Rooting out the culture of sexual assault and rape will take time and effort that extends beyond a legislative band-aid.  Making every young man feel like a rapist if he moves from kissing to "under the sweater, over the bra" without permission isn't going to solve the problem of men who feel entitled to sex as a matter of course.

This law won't clarify things.  It will make things worse, and I fear it will engender a backlash against the group that bears the most responsibility for ending the problem of campus sexual assault.

If you wanted to make a real dent in campus sexual assault, you should ban fraternities.  And I say that as someone who was in a fraternity.  Large groups of drunken men who feed off poorly imagined ideals of manhood with access to common sources of alcohol are a recipe for sexual assault.  Ban them and I bet the sexual assault rate falls tremendously.

But punishment has always proven to be a poor way to change behavior.  And changing the behavior should be the intent of efforts to reduce the level of sexual assaults.  Not saying, "We did something."

But that would cost legislators votes.  Much easier to do it this way.

Just not as effective.

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