No, California’s new affirmative consent law doesn’t expand the carceral state

This week, as many advocates cheered California’s passage of its new “yes means yes” law, gender studies professor Laurie Essig published a critique on The Chronicle‘s blog. I share her skepticism of carceral feminisms that place false and violent hope in the criminal justice system to deliver gender justice, but she is wrong to condemn the statute on these grounds: strong civil laws to combat sexual violence disturb, rather than reinforce, our reliance on incarceration.

Firstly, and mostly simply, SB 967 is not a criminal statute and will have no effect on criminal adjudication. Instead, it clarifies the definition of consent that colleges and universities must use when adjudicating sexual violence within their internal disciplinary process. In the original version of the article, Essig critiqued the law as a tool of the criminal justice system; the day after its publication, her article was significantly revised with a note that the “post was changed to clarify that the law will affect on-campus disciplinary actions.”

Despite important changes, though, Essig failed to sufficiently revamp the argument and still conflates civil and criminal law. She condemns the “yes means yes” law as a tool of the carceral state that will “expand notions of criminality.” Yet if SB 967 has any relation to incarceration, it is as a threat to its dominance in the public imagination of punishment. Strong campus adjudication offers a model for accountability that does not rely on incarceration, expanding our visions of what justice and support for survivors in the wake of violence could look like.

Additionally, Essig argues that campus feminists’ supposed belief that “cops… will make the world of intimate relations more just is an outlandish sexual fantasy.” The professor is wrong to classify sexual violence as “intimate relations” — the same mischaracterization that long justified public inaction on so-called “private” violence — but she is also wrong to condescend to young activists. These students know that the police are not the messiahs of gender justice. The Title IX movement springs, in many ways, from survivors’ devotion to alternatives to the criminal justice system, and its organizers, driven by concerns for the same class and race inequalities Essig cites, have been some of the fiercest feminist critics of incarceration in recent years. It is a disservice to the movement and to Essig’s argument to ignore these voices.

Where Essig wrongly conflates criminal and campus adjudication, she draws a false divide between laws of equality and laws of sanctions. She writes:

“Yes means yes” expands the concept of criminality in a country where race and class hierarchies are kept in place through the carceral state. It is not like the Equal Rights Amendment or equal-pay laws or other feminist legislation. Those do not increase the state’s power to mark certain bodies as criminal. They just demand equal rights.

Of course, SB 967 does not provide schools with the power to mark criminality. But if we read the excerpt generously, with “criminality” a stand-in for “sanctioned,” we see Essig drawying a line between the “good” rights statutes and the “bad” punishment statutes.

Yet Title IX, the law that requires schools to adjudicate campus sexual harassment and violence, is an anti-discrimination statute ensuring equal access to educational opportunities for people of all genders. Colleges and universities must take action to stop sexual abuse because it poses a threat to the chance to learn based on gender: it is hard to engage with coursework and campus life when facing rape, harassment, assault, or abuse. As Title IX so perfectly shows, a law that guarantees rights must also provide for ways to stop those who would violate those rights. Otherwise, what good are the laws? I would assume Essig thinks the equal pay laws she celebrates should be enforced, which necessarily require some sanctions for those who ignore the statutes’ requirements.

SB 967 is crucial to the equality guaranteed by Title IX; it is a statutory guide for how schools should carry out their responsibilities to ensure their students’ educations are not limited by gender violence. And it subverts the traditional patriarchal notions of consent Essig cites by empowering women as sexual agents who actively grapple with pleasure.

Our attempts to map legal language onto human experiences are always messy and imperfect. Consent is an important but incomplete concept: I invite continued discussion and critique of its role in equality protections. So too do I look forward to continued vigilance from writers like Essig to make sure our feminisms resist the deceptive allure of carcerality. “Yes means yes” and its student supporters, though, are the wrong targets.

Alexandra Brodsky is an editor at Feministing, a founding co-director of Know Your IX, and a student at Yale Law School.