Don’t Take Gawker Seriously on Sexual Assault

Volokh Conspiracy

Just yesterday I was pointing out that many people were misled about the content of George Will’s column on sexual assault  by left-wing sites that manufactured outrage by putting a wholly inaccurate headline on a blog piece that proceeded to misrepresent what Will wrote.

Now it’s my turn. Here’s the Gawker headline:  Law Professor: Only Prostitutes Would Directly Say “Yes” to Sex

The law professor in question is me.  What I actually wrote, in the context of discussing why no jurisdiction in the U.S. has adopted an explicit consent standard like the one I was commenting on, because it’s absurdly overbroad and would make almost every adult American guilty of sexual assault, is that “the vast, vast majority of ‘sexual contact or behavior’ is initiated with only *implicit consent.* [UPDATE: There is one type of sexual relationship that, as I understand it, involves primarily explicit consent–the relationship between a prostitute and her (or his) clients, with exact sexual services to be provided determined by explicit agreement in advance.]”

So you can see how the headline is false on multiple levels* but it certainly provides clickbait for Gawker.  I hardly expect an apology from Gawker because that’s just what they do there.

Meanwhile, when you get to the substance of Michelle Dean’s post, despite a lot of nasty verbiage thrown around, the best she can do in rebuttal is “I am not sure the ‘vast majority’ of sexual consent is implicit in the way he suggests here at all.”  I’m not sure either, because I said something slightly different; that the vast majority of sexual behavior is initiated only with implicit consent–for example, a woman starts to unbutton a man’s shirt, thinking she has his implicit consent, which would be revoked (or proven incorrect) if at some point he moved her hands away; she may also get his explicit consent when he verbally expresses his enthusiasm, or, arguably (as to the explicitness) when he helps her with the unbuttoning, which shows she was right to think she had implicit consent.

But really, all that vitriol because Dean is “not sure” that an imprecise reading of what I wrote is correct? Even if she had recounted what I wrote precisely correctly, all that vitriol because she’s “not sure” I’m right?

Nor, for that matter, does Dean ever address my point about a proposed California law providing for judging sexual assault complaints by an  “affirmative consent” consent standard, but only for college students in college-run hearings; if this is a good idea, why only for this limited category of people in limited circumstances?  Why not make it the legal standard for sexual assault in California? A particular scenario can’t logically change from sexual assault to non-sexual assault because it happens the day after graduation instead of the day before.

As for my broader point, that the extremely broad explicit consent standard incorrectly provided on DOJ’s website means that the vast majority of men and women in the U.S. are guilty of sexual assault, Dean doesn’t bother to disagree.  Instead, the best she can muster is “I do not think we are looking at any real danger of people being marched off to death camps for kissing each other.”

That’s obviously not really the question.  The question is whether you want to create a sexual assault standard that is so broad that a prosecutor (or other authority, if  for  example it’s a university matter) can basically punish anyone they want to, so long as someone is willing to file a complaint.  And so broad, as  well, that it trivializes sexual assault, in that it conflates sexual assault with things like reaching out to hold your date’s hand under the dinner table. It’s one thing to advocate an affirmative consent rule in situations in which expecting affirmative consent before initiating an activity is quite reasonable (for example–and to preempt silly rebuttals, I’m not saying this is the only example–couple is naked together for the  first time, one of them wishes to initiate intercourse).  But the California bill I blogged about applies to all “sexual activity” and the DOJ website definition applies to all “sexual contact or behavior”–which includes kissing, holding hands, stroking hair, etc., and includes life partners as well as first dates–and if you’re going to persuasively defend the bill or the definition, you have to defend what they actually say, rather than simply attacking critics in misleading ways to get clicks.

*  [Update: To spell it out for the type of people who innately believe Gawker headlines and publications of similar reliability like Weekly World News, contrary to the headline I wasn’t talking about “sex”, which implies or intercourse or at least something just short of it, but all “sexual contact or behavior,” which includes kissing, hugging, etc.  People in relationships don’t usually ask for explicit consent before such things, though these things are, I believe (but not from first-hand or even second-hand experience, to be clear) actually subject to explicit negotiation with prostitutes.  I also never said that only prostitute-client relationships ever involve explicit consent to any sexual contact. I said that prostitute-client relationships are a type that involve primarily explicit consent, which, contrary to the headline, not only doesn’t state but doesn’t even suggest that explicit consent to sex, or  sexual activity more generally, only exists among prostitutes and johns. Finally, all this was in the context of how sexual behavior is initiated.  The fact that someone doesn’t get explicit consent when initiating an activity such as kissing doesn’t mean he or she doesn’t get it shortly thereafter.

Further update:  Why did the Gawker headline raise my hackles so much? People get misrepresented on the Internet all the time, after all.  Because falsely attributing to me the sentiment that  “Only Prostitutes Would Directly Say ‘Yes’ to Sex” will make it seem to a reader that reads the headline on Twitter or Facebook as if I said either that non-prostitutes never directly say yes, or, perhaps worse, if someone ever directly says yes that means she is a prostitute or at least some moral equivalent. Both of these sentiments are highly offensive, and I object strenuously to being falsely associated with them.]


  • David Bernstein

    David Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, VA. He is the author of Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (2011); You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws (2003); Only One Place of Redress: African Americans, Labor Regulations the Courts from Reconstruction to the New Deal (2001); and numerous law review articles.

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