Law Professor: Only Prostitutes Would Directly Say "Yes" to Sex

The fallout from George Will's silly, under-researched column on sexual assault on university campuses can at least be credited with inspiring some entertainingly clueless commentary. Exhibit A: the thoughts of a George Mason law professor named David Bernstein, published by no less than the Washington Post.

The title of Bernstein's effort yesterday gives you an indication of the subtle depth of thought contained therein: "YOU are a rapist; yes YOU!" The subject is the move by a California legislator to introduce an "affirmative consent" standard into college campus disciplinary systems. That is a relatively harmless move to address the growing, and well-documented, debate about how to develop a more effective way of dealing with sexual assault on university campuses.

But the manner in which Bernstein addresses this makes him comes across as someone who has only recently landed on Planet Sex. For example:

The answer is that [an explicit consent standard is] not a good idea, and it's a product of the current moral panic over the hookup culture.

"The hookup culture." This man understands those Kids Today.

Spinning out further into apoplexy, Bernstein moves on to trawling the web for inopportune statements. He spots one on the website of the Office for Violence Against Women (that hotbed of sexual fascism) where they explain that "sexual assault is any type of sexual contact or behavior that occurs without the explicit consent of the recipient."

This relatively anodyne statement causes Bernstein's heart to pound. Courts don't use this standard, he says, without apparent regard for the fact that literally no one who's studied sexual assault thinks that the way the law currently addresses the question is ideal.

But Bernstein isn't speaking from careful study or thinking. He's speaking from his "understanding," as when he offers his own I'm-from-Mars view on how consent in sex really works:

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.]

Oh dear. It's hard to pick the most wrong-headed part, though the "UPDATE" might take the prize. I am not sure the "vast majority" of sexual consent is implicit in the way he suggests here at all. I do not think we are looking at any real danger of people being marched off to death camps for kissing each other. I am absolutely certain that sex workers are not the only people who prefer that consent be clear, open and well-stated between the parties.

Writing this sort of thing makes you come across as a man who feels oppressed by the mere idea of getting a clear "yes" out of the person you're sleeping with. Which, you know: please, put that in your dating profile in future so women know to weed you out.

It's funny because the main thrust of Will's column, and of the various defenses of it, has been to accuse the people who are seeking reform of sexual assault laws of participating in an "outrage machine." Of being hysterical, emotional, lacking the clear-headedness to consider the facts.

But it's the people who object to the reform who are turning feverish and irrational. They're writing from "understanding" rather than research. It's not hard to find real, hard reporting about college mishandling of sexual assault. These guys should try reading those stories and see if that reduces their defensive foaming at the mouth.

[Image via The Cato Institute.]