| Gregg Easterbrook and Dahlia Lithwick debate the "no means no" question in rape. I think that Dahlia's piece is closer to the mark; but what puzzles me in a lot of these discussions is the ambiguity in what the discussants themselves mean by "no" (and thus "no means no"), which can lead either to the parties talking past each other, or sometimes to inconsistency in a party's own argument. I would think that both Lithwick and Easterbrook would agree that "no" generally means at least "not right now." I suppose we can come up with hypotheticals (or even real incidents) where no is said the right way under just the right circumstances that it doesn't mean "not right now." But "not right now" is a very good place to start, especially when the parties don't know each other well enough to have any justifiable confidence in their ability to figure out each other's subtle signals. (If Easterbrook doesn't agree on this, then I think he's mistaken, and Lithwick's criticisms are quite sound.) I would also think that both Lithwick and Easterbrook would agree that "no" often doesn't mean "no, never" or even "no, not this evening." (It could mean that, but it often doesn't.) In fact, I suspect that most -- though probably not all -- people who make the "no means no" argument would acknowledge that women have a right to change their minds, both from yes to no and from no to yes. If I'm right that the "no means no" argument doesn't usually mean "no means never," then Easterbrook's point that "no" may mean "not now, but maybe after more wine" is something of a red herring, and doesn't really help much advance his argument. The simple "no means no" framing has misled him. And if I'm wrong, and most people who argue "no means no" do mean "no means never," then the simple "no means no" framing has misled Lithwick. (I set aside the question of at what point consent is made meaningless by intoxication; I assume the "after more wine" refers to something less than an intoxicating quality.) One way or the other, "no means no" seems to be getting ambiguous enough to be not that helpful. What's more, it doesn't really capture the heart of any particular factual debate. I haven't been closely following the Kobe Bryant trial, but I take it that the prosecution's argument is "she said no once, so though she willingly had sex with him afterwards, it's still rape." I take it that the defense's argument isn't "she said no, but Bryant immediately began having to sex with her against her will, because he thought she really meant yes." And I take it that even the other critics or defenders of Bryant, who aren't bound by the needs of litigation to make the most aggressive arguments possible, probably wouldn't suggest these scenarios. Rather, I suspect the argument would probably be, as I said, that "no means not right now, and he did it right now" or "no means not right now, but after a while she changed her mind." Either side's intellectual argument would, I think, be strengthened if they went beyond the ambiguous "no means no" to something more specific. (I set aside the issue of rhetorical strength, since that's not what I'm talking about here; and I'm sure that Lithwick and Easterbrook aren't just trying to score rhetorical points, either.) None of this will solve the problems at the heart of rape prosecutions. Whether it's "no" or "hell, no" or "this is rape" or "yes, yes" eventually followed by a false claim of rape, the trouble is that short of mandatory audio- and videotaping of all sexual behavior there will be tremendously difficult problems of proof in such cases. I have absolutely no solution to that problem; I'd like some miracle that will cause all rapists to be punished with extreme severity, and all nonrapists to be promptly acquitted (or, better yet, not even charged), but when I last checked that didn't qualify as a solution. But I do hope that being a little clearer than just "no means no" can help the policy discussions along in some measure. Sexual encounters may be fraught with ambiguity, but intellectual ones need not be. -- Posted by Eugene Volokh to The Volokh Conspiracy at 10/13/2003 10:55:17 AM Powered by Blogger Pro |
