Naked Consent: Why Personal Speech Codes Won’t Curb a Social Problem Like Sexual Assault


Speech codes won’t fix what ails a relationship marketplace that aggravates—rather than relieves—the risk of sexual violence. California’s proposed law will simply multiply accusations, legal proceedings, and judicial headaches.

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President Obama is right. Our nation has a problem with sexual assault. The Relationships in America survey project, a large national data collection effort I oversaw earlier this year, suggests that the president’s “20 percent” figure on college sexual assault is not far off. When I limited my analyses to those women no older than age 25 who’ve already earned a college degree, I learned that 19 percent of them report having been physically forced to have sex against their will at some point in their life.

But some proposed solutions wouldn’t help much. Last week, sociologist Michael Kimmel and author Gloria Steinem took to the pages of the New York Times to express their support for pending California legislation that would require verbal consent for all sexual activity on the state’s college campuses. Couched in protective language aimed at vilifying “anti-feminists” and “opponents of women’s equality,” Kimmel and Steinem make a case for an admittedly odd law by attempting to shame the unconvinced. The only predictable thing missing was a “right side of history” reference.

I don’t think Kimmel and Steinem are foolish to be concerned. We do have a social problem here. But what Kimmel and Steinem do not do is adequately wonder about how and why things have gone awry. They grasp at speech codes, unwilling to admit the profound trade-offs that have, in part, stimulated the development of a relationship marketplace that is more vulnerable to sexual violence.

Legalism Won’t Fix the Mating Market

What has shifted—and what Kimmel and Steinem and scores of others ignore or belittle—is the mating market’s power structure. It’s now dominated by men for the simple reason that women no longer need them (but still want them). While many assert that life is far more woman-friendly than ever before, a close examination of how men and women meet and mate suggests a grittier reality: Sex is cheap, and too many college men (and women) prefer it that way.

Sex is cheap because of structural shifts in the mating market made possible by technology—especially the wide uptake of contraception—that nearly everyone celebrates and defends. But no amount of scholarly conjecture and political posturing can replace the numerous accounts of women who feel like finding a mate today is tantamount to gambling. Some settle. Some get “lucky.” Others opt out, or “lean in” at work. The contemporary mating market is far less predictable than in earlier eras, times that Kimmel and Steinem would rather not return to. The good news for them is that there is no returning. It will not happen.

But it’s time to admit that today’s mating market is precarious, and aggravates—rather than relieves—the risk of sexual violence. While women gained access to careers, men came to expect more sex—and earlier—both inside and outside relationships. Technology did nothing to solve the age-old dilemma of how to channel the sexual appetites of men. Rather, it stoked them. Thus we ask men to “man up” and protect women but fail to realize that men are more apt to do the right thing when they sense constraint not simply from their own willpower—which is notoriously weak—but from social control mechanisms. Instead, we’re discussing speech rules, vainly hoping they will reform men’s motivations and actions.

It seems the law is the only resource and framework that Kimmel and Steinem can envision here. Such is a political culture fixated on rights, not goods. My recollection of Solzhenitsyn’s criticism of the West returns quickly:

Every conflict is solved according to the letter of the law and this is considered to be the ultimate solution. . . . If one is right from a legal point of view, nothing more is required, nobody may mention that one could still not be right . . .

. . . a society without any objective legal scale is a terrible one indeed. But a society based on the letter of the law and never reaching any higher fails to take full advantage of the full range of human possibilities. . . . Whenever the tissue of life is woven of legalistic relationships, this creates an atmosphere of spiritual mediocrity that paralyzes man's noblest impulses.

I’m not suggesting a “hands-off” approach to dealing with the grave matter of sexual assault. I am, rather, suggesting that the California legislation is a waste of ink, paper, and the people’s tax dollars, because a law requiring a conversation that no one else hears or documents—even if it’s marketed as “sexy,” to repeat Kimmel and Steinem’s trite remark—is not an improvement. Conflict over what actually happened, and whether the word “yes” got spoken audibly or frequently enough or at the right times or with an acceptable blood-alcohol level, remains his word versus her word. (Perhaps couples ought to write down or videotape their trysts—how could that go wrong?) No, this law will simply multiply accusations, legal proceedings, and judicial headaches. Trusting lovers will ignore, ridicule, or spoof it.

Social Control and College Administrators

But what about social control and oversight? Consider the uniquely American obsession with “going away” to college. Unlike most Europeans, we send our children—whose peak virility and fertility have just hit their strides—away from home to live in alcohol-saturated, mixed-gender compounds far removed from the only remaining authorities (and caregivers) in their lives. And then we have the audacity to hope for wonderful experiences to materialize.

If colleges want to do something to mitigate this toxic social environment, they could at least put up a reasonable social barrier like single-sex residence halls with bona fide visitation hours—a move Catholic University of America President John Garvey took in 2011 amid howls of ridicule. While in loco parentis is long gone, residence hall parents—not just a youthful director—are a welcome idea. Clever lovers will always find a way around the rules, but they’re not the source of the social problem here. The bottom line is that reasonable barriers help prevent violence by denying it opportunities it currently enjoys.

Colleges might also consider reforming their Greek systems. Fraternity parties on my campus seek to manipulate the “sex ratio” in their favor—any woman may attend, but only males who are members or select invitees are admitted. This is done to create competition among the women and therefore elevate the fraternity brothers’ odds of concluding the evening upstairs (reciting new speech codes, no doubt). At the University of Texas at Austin, most sororities have shared sleeping quarters off limits to visitors. Most fraternities do not. This is a double standard worth reevaluating.

The problem is that Americans want all the benefits of the modern mating market—things like more time for schooling and trying on relationships, delayed parenting, and more nights out with the guys or girls—but are reluctant to admit there are unintended consequences that will accrue, including women’s extended vulnerability to men’s heightened sexual expectations.

While crucial, consent—by itself—is a rather weak foundation for fostering the good here. Hence, we are really not protecting young women by pressing for laws that—by design—are intended only for a private moment where no one else is around but a woman and an aroused man.

The California State Senate can run with its idealism. The sky will not fall if this bill passes. In fact, very little will change at all—except, perhaps, for increased litigation. But if Americans are genuinely tired of a culture where “no means yes, yes means anal,” then it’s time to get pragmatic and consider some social—not just personal—control.

Mark Regnerus is associate professor of sociology at the University of Texas at Austin, research associate at its Population Research Center, and a senior fellow at the Austin Institute for the Study of Family and Culture.

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