Ezra Klein has a piece out about affirmative consent laws that, in many ways, belongs in a time capsule. I can hardly imagine a document that is a better encapsulation of the performative morality of the educated media class that dominates our national conversation, wedded to the broken economics of online journalism, wrapped up in the peculiar pathologies of a group of people who speak of nothing but the vagaries of privilege while working to solidify that privilege at every turn.
It’s interesting to think of this issue from the perspective of data journalism, the supposedly ideology-free approach to life where empirical data is handed down on us from Zeus, wrapped in silk and untouched by the stain of ideology. Yet here, Klein arrives at a straightforwardly illogical conclusion and embraces it. Not that there’s much actual challenge here, of course. Ezra is no dummy. He knows privileged lefty culture too well to risk questioning this law. As he is surely aware, there is all kinds of risk in going against the grain when it comes to this issue, and essentially no reward. After all, as Shikha Dalmia recently found out the hard way, there is a price to be paid for failing to endorse the consensus here.
And as goes Ezra, so will go elite media. Klein has always been one of those interesting media figures, at once a weather vane and the weather. Brad Delong once showed up in my comments to tell me that criticizing Klein is “career-limiting.” That amounts to essentially proving every criticism I’ve ever made about the media. But it’s not wrong.
In this whole fracas, I have found that the supporters of the law that I respect the most are the ones who admit that the purpose of affirmative laws is not to broadly change conventional sexual behavior but simply to remove the presumption of innocence when it comes to sex crimes. Almost no one I talk to about this issue thinks that every couple will start asking for explicit permission at every stage of every sexual encounter, and indeed many, such as Jezebel’s Erin Gloria Ryan, mock the notion that people who fail to follow the letter of the law will ever be prosecuted. (Indeed, my assumption is that the vast majority of people who advocate for these laws publicly do not practice the old Antioch Rules themselves and have no intention of starting, law or no law.) Instead, the purpose of this law is to effectively remove the presumption of innocence and shift the burden to the accused to prove that he sought and obtained consent in a sexual encounter. That the presumption of innocence is essentially the bedrock principle on which Western jurisprudence is built, thanks to a vast history of judicial abuse and overreach, is a fact too inconvenient to be mentioned in the realm of affective politics.
What I would like to point out today is that the police officers and prosecutors who will be given these expanded powers are the same ones that rule our current judicial system, a system of hideous racial and economic inequality that already imprisons Americans at an almost impossible rate and which has revealed itself again and again to be incapable of policing or prosecuting without deep racial inequality. I know these things because — well, because of people like Ezra Klein, because of sites like Vox, because of the self-same elite media that has been so aggressive in making the case for affirmative consent laws. To their immense credit, our media elites have taken to speaking far more plainly and critically about police misconduct. The people who would hand unprecedented license to police and prosecutors turn around and post photos from Ferguson vigils to their Facebooks.
Let’s focus specifically on the question of exoneration for crimes and for sex crimes. That false accusations of rape are rare is a commonplace in this discussion, and one that I agree with entirely. But this is also true: sexual assaults convictions are unusually likely to later be overturned. In a study of 250 convictions that were later overturned, 89 percent were for sex crimes, despite the fact that only 10 percent of our prison population is serving time for such crimes. There’s no contradiction in saying that false rape accusations are rare but that sex crime accusations are more likely than others to later be overturned. And as is true in all aspects of the American criminal justice system, the embedded racism of that system plays a huge part. Black and Hispanic men make up about 14% of the American population, and yet they made up 70% of the exonerated convictions. As the linked piece points out, this percentage exceeds the already large overrepresentation of men of color in the overall prison population. As most false convictions will likely never be overturned, we can be sure that there are far more men of color currently serving time for sex crimes they did not commit. The causes are not hard to ascertain. A related study concerning the same data, closely examining 35 of these cases, found repeated instances of “witness mis-identification, coerced forced confessions, flawed ‘scientific’ evidence, and official misconduct.”
It turns out that America’s racist and incompetent police forces and district attorneys don’t suddenly become competent and enlightened when it comes to prosecuting sex crimes. In fact, the opposite seems to be the case. The police state that will implement affirmative consent laws is the same one that kills poor black men with impunity. How could that possibly be surprising to anyone?
Now there is a wrinkle to all of this, which is the fact that the current California law pertains only to college campuses. As I’ve said before, it seems perverse and dangerous to create separate definitions of consent for one small group of people, but that’s the bill. College sexual assault is a horrific problem, and deserves attention. But like all violent crimes, sexual assaults are committed disproportionately against the poor and uneducated, precisely those who are least likely to be attending college. In this way, the educated social and cultural group that writes our elite media has, for weeks, turned a universal issue that hurts the poor more than anyone and made it an issue about a small slice of our population. With great gravitas, Ezra intones, “This is, in a way, the definition of what it means to be entitled: the rules are designed to protect you from dangers that barely exist at the expense of exposing others to constant threat.” That is one definition of entitlement. Another definition is when you have taken a national conversation on a crime that is more likely to happen to the poor and uneducated and devoted it for weeks to a group that is whiter, richer, and more educated than the country at large.
In any event, if we continue to treat affirmative consent as an issue that only pertains to college students, we are creating a definition of sexual consent that pertains only to a small sliver of our population which comes from particular demographic backgrounds. If we universalize affirmative consent, we unleash a lower standard onto police and prosecutors who have already demonstrated themselves to be incapable of avoiding racial or class prejudice. And I in no way believe that the inequality that is endemic to our judicial system will not fall on people of color and working class students in our universities.
I would like for you to consider the Duke lacrosse rape case. Unlike some, I don’t think that this case demonstrates how rich white kids can’t get ahead in this society. In fact I think it proves the opposite. Yes, the accused suffered through an ugly situation. But they were exonerated, the prosecutor was not only subject to ethics charges but criminal prosecution and disbarment, the police launched an internal investigation, the accused pursued a large civil case, and a large swath of this country was gripped with righteous rage on their behalf. Meanwhile, hundreds of people with less social capital and privilege, many or most of them men of color, have been exonerated of sex crimes they did not commit, and not only have the prosecutors and police responsible faced no official sanction, in many cases they have never bothered to apologize. The discrepancy is not only not surprising, it’s banal: privilege endures, and it will endure in a world of affirmative consent. If you really believe that these laws will end up affecting the privileged frat boys that you’ve imagined, then I think you simply don’t understand America. This is still the America of Emmett Till.
This is reality: if we do indeed lower the burden of proof for the police state to prosecute sexual assault cases, that power will be handed to the same people who are responsible for Ferguson and the NYPD and all the rest. And this is reality: the burden of that increased power will inevitably fall on the poor and the black, because that is who the white police state prosecutes with greater zeal than any other. That is not conjecture. That is not a guess. We know that. We know that the police state is racist. We know that the police state targets the poor. We know that false convictions are far more likely to happen to black and Hispanic men. We know those things. Doing away with the presumption of innocence will not mostly hurt privileged white frat boys. It will hurt poor people and black people the way that our judicial system always does. So if you, like Klein, want to be breezy and loose in your talk about the consequences of a law that many or most admit is badly flawed, fine. But let’s count those costs like adults. Let’s talk about the prison state we have and not the one you wish we have. Let’s talk about this America and not the one that you’ve invented. Because in this America, we know what happens when you give prosecutors and police greater license. We know who they use that license against
But hey. As long as we’re making an omelet, am I right?
Update: “By this reasoning, we can never criminalize anything, because the burden of criminalization will always fall harder on racial minorities and the poor.”
We can and have to pass laws criminalizing things when necessary. But when we do, we must weigh the potential benefits of that criminalization against the sure knowledge than in an unequal society riven by gender, class, and race inequalities, there will be additional burdens on those who lack social privilege. We have to be confident that the benefits outweigh the potential inequality in outcomes. So: when the supporters of a law are themselves calling it terrible, and when that law expands the ease of prosecuting cases that we know have already resulted in deep racial inequality, do you believe that we’ve met that standard?