The Problem with Yes Means Yes

Ross Douthat has a good link roundup of liberal and conservative takes on California's new "Yes Means Yes" law.
I will leave liberals to sort out their internal contradictions on the matter of California's "Yes Means Yes" sexual consent law for its college campuses. I want to address the conservative argument in its favor.

First, we have the one quoted (though not endorsed) by Ross Douthat: that the law will "maximize the contradictions" of the beer-and-circuses college sex scene. The weird thing is, I've heard this argument from conservatives at least twice before. It was put forward in the 1980s in favor of exerting maximum political energy on enacting tax cuts while leaving matching spending cuts to look after themselves; it was the "starve the beast" strategy of obtaining a smaller government. The second example: third world immigration should be welcomed on the grounds that it would make the welfare state financially untenable and at the same time undermine the case for the racial preferences that blacks justified on the grounds of discrimination; if immigrants could succeed in America, then blacks have only themselves to blame for their failure. In the 1980s, I probably subscribed to both of these arguments, but in the fullness of time, we can see they didn't exactly pan out as expected. So I'm skeptical here that YMY is a harbinger of a return to conservative college governance.

Second, Heather McDonald hopes that notwithstanding the ideology behind it, the law will lead to less promiscuous sex. This is certainly a plausible result, though by no means a certain one. The old dispensation of in loco parentis relied much less on punishment (in contrast to natural consequences) than in did to an apparatus of supervision and governance to prevent misbehavior from occuring to begin with. Ross is likewise skeptical.

I am not unaware of the irony of an atavistic conservative such as myself being put in a situation of appearing to defend the college hookup sexual scene. But what scares me about YMY is that there is no logical reason (and here I mean the logic of the law's supporters) it should be confined to the drunken hookups of college students or the unmarried in general. Remember the reigning orthodoxy: a prior sexual relationship, and even a lawful marriage, is no grounds for assuming implied consent. And there should be no statute of limitations on how far back violations of such consent can be prosecuted.

As the critics of the law have pointed out, and to which I will testify based on my own 17-year marriage, the vignette of consent-obtained-at-every-stage bears little relationship to the way couples actually go about the proccreating business. At a certain level of relationship comfort, nobody asks anything. We read the signals, recognize the routine, take the initiative, and fall to. The law's sponsors insist they're not talking about those relatioships, because those won't generate legal complaints.

Or will they? What happens when a relathipship goes bad? One partner dumps the other, or doesn't call, or cheats; the other partner wants "closure", female-speak for revenge. Or a marriage falls apart for any of the myriad reasons other than sex that marriages fail, and everyone winds up in an adversarial divorce proceeding? What then?

Then, of course, the YMY rules can be retroactively invoked. (If you think retroactively applying a different standard than the one in de facto force during the relationship is absurd, think again.) Now the young college student's mating behavior can be called to account against a standard that it never had been before. And soon, if the law's logic is allowed to stand, the standard can be used as leverage against a husband during divorce proceedings: give me what I want, property, sole custody, whatever, or I'll accuse you of "rape", the technical YMY definition you will have met . . . a dozen times monthy for X years of marriage. Time will tell how credible the law will be in front of flesh-and-blood juries. But that's a pretty big risk for a divorcée to run.

I suspect the law's supporters see this as a feature rather than a bug: giving legal leverage to women is kind of the point of the law, after all, and the further its application extends, well, so much the better. But that's hardly a reason for conservatives concerned with building stable families to support it. Much to the contrary.