Is satire still possible? In 1990 the chaos of the dating scene on campus and wave of controversy over date rape led me to pen a modest proposal for my student newspaper. Colleges should simplify the hookups that had replaced formal dating, I argued, and solve the problem of sexual misconduct in general, by subjecting all dating to a standard written contract. It would feature a set of questions about the acceptability of each kind of physical activity, from “Kiss, Y/N” on up. Getting laid would become as streamlined and transparent as renting a car: sign here; initial here, there, and … here.
Officials in the U.S. Department of Education, people blessed with the capacity to be absurd without trying to be absurdist, are now pushing us in the direction of this contract. In 2011, DOE declared that the law against institutions of higher education discriminating on the basis of sex required colleges to discipline or expel students found—by campus tribunals employing the least exacting standards of proof, while also affording the accused few procedural protections—guilty of sexual assault. The indifference to due process was consistent with DOE’s decision to effect this policy change through a “Dear Colleague” letter, rather than amend the law or follow the usual course of developing new administrative rules to interpret and enforce it. Won’t this mean that some innocent men will be railroaded off campus? Well, as one Colorado legislator put it, “If there are 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people.” By contrast, during the Salem hysteria, Increase Mather reminded his congregants that, “It were better that ten suspected witches should escape, than that one innocent person should be condemned”
The states are getting busy, too. California has passed an “affirmative consent” law, mandating that people obtain clear, explicit consent for each step of each sexual interaction, whether they just met or have been sleeping together for years. The University of Minnesota is enacting a similar policy. Political pressure is growing for other states and universities to follow suit.
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These “yes means yes” policies are unworkable. As Slate’s Emily Yoffe has written of the Ohio State University rules defining sexual consent, “two young people who want to engage in sexual congress might be well advised to first consult with the philosophy department and the law school.” For example, undergraduates are expected to interpret and apply these clear, helpful standards: “Effective consent can be given by words or actions so long as the words or actions create a mutual understanding between both parties regarding the conditions of the sexual activity—ask, ‘do both of us understand and agree regarding the who, what, where, when, why, and how this sexual activity will take place?’” What if they honestly heard or interpreted different things? Such a standard can be reasonably enforced only when it is applied judiciously by prosecutors. In short, such an ambiguous standard is all but impossible to reconcile with the rule of law. Only a written contract will do. The safest thing would be for well-established couples to create long-term contracts. But does anyone really want to turn sexual relations into a game of Mother May I?
Unless and until we return to more formal modes of courtship, the asymmetrical expectations and understandings inherent in the mixture of adolescence and casual sex, often abetted by alcohol, will guarantee recriminations and accusations, which in turn make litigious appeals to authority inevitable. Clearly, significant numbers of young men and, especially, young women are angry about our hookup culture. Though recreational sex gratifies human passion and instinct, it often leaves people feeling used, betrayed, and profoundly unhappy. The new zeal about campus sexual assault is a response to this quandary. If consensual sex of whatever sort is beyond criticism, but much of the sex that results leaves at least one participant feeling degraded, the solution is to redefine “consent” so broadly that old, discarded standards of sexual morality are given new moral and legal force.
The ancient wisdom holds that you can drive nature out with a pitchfork, but she always returns. Ross Douthat argues that “in a landscape where traditional ideas about sexual morality no longer have much purchase, there’s no easily accessible moral language in which to process either legitimate rage at repellent/dishonorable male behavior or a sense of personal shame, let alone to have those feelings validated by your peers or authority figures. Unless, that is, those experiences can be labeled as sexual assaults, in which case the moral dimension is suddenly re-established, the moral stakes clarified, and any inchoate feelings distilled into a clear narrative of crime requiring punishment.” These developments make the turn to dating by express, written consent the most logical course for our feminists, and for the administrators responsible for overseeing student life. The new laws seek to maximize both consent and choice. Were Irving Kristol alive today, he might say that “a liberal is someone who has no objection to his sixteen year old daughter engaging in S&M so long as she consents and the boy is under eighteen.”
This crusade is of interest to moral philosophers and sociologists, but also to historians. We modern academic historians are trained to reject the idea that history is philosophy teaching by example, a view held by great historians from Thucydides to Livy, Machiavelli, Gibbon, and beyond. Why? Because, we are taught, humans are cultural beings. History is the story of how cultural habits and “ideologies” (a modern term) develop over time. The classic view of history is different. Taking it as given that there is a human nature—meaning that like causes will have like effects in the moral world, no less than in the physical world—history provides data which might help us grow wise, and to assess and understand the likely course of cultural development. It helps us, for example, to see why the conditions of sexual relations on campus (and, in California law, off campus, too), combined with post-modern philosophy, meet with the hard realities of human nature and point us toward something like an official dating contract, unless we change direction radically.
That returns us to the problem of sex on campus. Radicals say their goal is “broadly reorienting … how we approach sex in the first place.” Do Americans really want that? Perhaps, but do they wish to reorient in the direction the activists wish to go? Doubtful. Such campaigns often succeed in making change, but not the change the advocates seek. Human nature certainly leads us to seek rules of sexual conduct, but almost certainly does not encourage the hope that we can devise rules as though we are creatures who have no deeply seated instincts, desires, or goals that shape our sexual conduct. After all, the old conventions became conventions because they appealed to something in human nature. We forget that at our peril. The result is that what was once farcical suggestion is becoming the basis for a tragic reality.