The subtext behind affirmative action debates.

There’s a fundamental absurdity lurking behind all affirmative action debates in the United States: The official justification for affirmative action is “diversity”, but the more reasonable moral justification is giving a leg up to disadvantaged groups. These two goals kind of mean the same thing for blacks and Hispanics, but not necessarily for any other groups.

Hence the Harvard admissions case.

The “text” of the case is that a court is trying to figure out whether Harvard discriminates against Asian Americans. Harvard says it doesn’t; the plaintiff says it does. The subtext is that everyone knows Harvard discriminates like hell against Asian Americans, but political coalitions make it inconvenient to address the issue.

Is spinning poi cultural appropriation?

One way I can fool people in the real world into thinking I’m cool is by spinning fire.

The man in the above video – who is not me – is spinning props called poi, which is the Maori term for a traditional performance art that involves balls on strings.  Every once in a while, you’ll get someone who’ll tell you that white people shouldn’t spin poi, because it’s “cultural appropriation.” This is not a big deal, and it never goes anywhere because there is no substantial movement among the Maori themselves to stop white people from spinning poi.

Conspiracies without theories, theories without conspiracies, and theories about conspiracies.

A post last month on /r/slatestarcodex asked whether professors who believe in conspiracy theories should get to keep their jobs. That question seems pretty easy to me – if their beliefs interfere with their teaching, then firing or some other kind of discipline is appropriate, otherwise not. What’s more interesting to me is one of the follow-up comments:

“MKUltra, the Gulf of Tonkin, Bohemian Grove, CIA involvement with the Dalai Lama, Cigarettes causing cancer, the testomony of ‘Nayirah’ before the Gulf War, Operation Mockingbird, CIA involvement in the importation of Cocaine, The Iran-Contra affair, even the Chernobyl nuclear disaster all started as conspiracy theories.”

Parallel proceedings

Did you know that many jurisdictions in the United States already have “affirmative consent” standards for sexual assault? You could be forgiven for not knowing that, given that it’s almost never mentioned in the current controversies. And I don’t mean like the California law, that was passed recently and only applies to disciplinary hearings on college campuses; I mean long-standing laws where you can be fined or sent to jail if you touch someone sexually without their affirmative consent.

This should tell us two things:

1) Given that you probably have no idea whether you live in one of these jurisdictions or not, affirmative consent laws clearly do not lead to an atmosphere of fear surrounding sex, a sense that the government is digging too deeply into our sex lives, or what have you.

2) By the same token, affirmative consent laws don’t make it much easier to get convictions. These things really do come down to “he said, she said” – “he said” almost always describes behavior that does not meet the state’s definition of sexual assault, and “she said” almost always describes behavior that does meet the definition…because both parties have lawyers who generally want to win their cases and aren’t idiots.

Basically, anyone who says “affirmative consent shifts the burden of proof from the victim to the accuser” is wrong, whether or not they’re saying that’s a good thing or a bad thing. Burden of proof isn’t going anywhere; international human rights law says you can’t impose criminal penalties on someone unless you prove them guilty beyond a reasonable doubt. Let’s say we believe that only 2-10% of accusations are false…but reasonable doubt is often said to be roughly a 95% threshold; it’s still iffy whether you can clear that on a victim’s testimony alone, which is often all there is.

And so this leads to very few sexual assault convictions (actually, clearance and conviction rates for sexual assault are just as high as for other serious crimes; it’s the reporting rate that’s low, and I think we can safely assume that most of the unreported assaults are the ones that would be difficult to prove beyond reasonable doubt.)

So what can we do? I think we know, honestly. Why have activists focused so much energy on Title IX? Because it does what we need – it provides non-criminal penalties for sexual assault along with a lower burden of proof. Which would be great, except that it also replaces the institutional competence of the court system with university bureaucrats who have serious conflicts of interest and no idea what they’re doing, and it discriminates egregiously on social class by serving only college students, who are less likely to be sexually assaulted than women of the same age who are not in college.

There’s a solution, however imperfect. Remember Taylor Swift’s trial? Remember that she won, even though we couldn’t see absolutely-for-sure in that photograph whether the guy’s hand was on her ass? That’s because she sued him for civil damages. She sued him for only one dollar, which was fine from her point of view but probably not what most people would want; in general, the best bet would be “parallel proceedings” involving simultaneous criminal prosecution and civil damages. One fairly likely outcomes of such proceedings would be that the perp is found “not guilty” in the criminal trial but has to pay civil damages; his likelier-than-50% guilt is now a matter of public record. And though he’s not in prison, he may have nevertheless gotten the fear ‘a jesus put in ’em, much to the benefit of future, potential victims.

Parallel proceedings for sexual assault are possible now, and maybe even kind of common, for cases that are brought to court. But they’re not normative – when someone who has been sexually assaulted considers their options, they don’t immediately think of parallel proceedings as the way to go. What if that changed?

Extremely late-breaking thoughts on the Lewinsky scandal.

1. Committing sexual harassment, under its legal definition, should be an impeachable offense. Conduct that falls just short of the legal definition by not being “severe” or “pervasive” enough should often be an impeachable offense, especially if there’s a pattern of it.
2. Having an exploitative-but-consensual relationship with someone should definitely not be an impeachable offense, and I do not believe it’s possible to argue otherwise while taking consent seriously and without infantilizing forty-four-year-old Monica Lewinsky, who has been telling us a consistent story for twenty years. Sexual harassment is by definition “unwanted,” so anyone who says this was “textbook sexual harassment” is using the wrong textbook.
3. Creating the appearance or risk of sexual harassment, by having a relationship that’s unethical and makes it difficult (at the time) for outsiders to know whether consent is genuine, should probably not be an impeachable offense; however this is a closer call, and I don’t think it’s illiberal or infantilizing to argue otherwise.
4. The actual crime Bill Clinton was impeached for, and that no one seems to be talking about currently, was lying under oath in a sexual harassment case. That case was initially dismissed because the judge felt Clinton’s alleged behavior was not severe enough to count as sexual harassment, a decision that looks dubious in retrospect (at very least, there should have been no summary judgement.) That decision was appealed and the case was later settled. In retrospect, I think lying under oath in a sexual harassment case should be an impeachable offense, given that the behavior he was lying about – a pattern of having affairs with subordinates – was clearly relevant to the case.
5. I don’t think most people should beat themselves too much over not realizing this at the time, because the credible allegations of sexual harassment and assault were mixed in with a deluge of blatantly false accusations and conspiracy theories about other things; it simply wasn’t possible, back then, for the average person to pull up a bunch of documents about the accusations on the newfangled interwebs and realize they credibly pointed to a pattern of abuse. I feel differently about journalists who covered the case, activists who made public statements, or politicians who voted on impeachment; they had a greater responsibility to weigh all the available evidence.

Against “The Toxoplasma of Rage.”

“The Toxoplasma of Rage” is regularly cited as one of Scott Alexander’s best essays, and I think it’s fundamentally mistaken, at least about the high-profile incidents it showcases.

He calls it “toxoplasma” because – like toxoplasmosis in rats and cats – there are supposedly two stages to how a story goes viral:

1. Activists promote dubious stories because that demonstrates their zeal to their fellow activists.
2. Counteractivists promote the same dubious story to demonstrate how dumb the original activists are.

 

I have a different theory:

Concentric circles of free speech, via Colin Kaepernick.

(copied from a months-old Facebook post)

1) If someone calls Colin Kaepernick unpatriotic for kneeling during the national anthem, there’s no free speech issue. It may be a violation of some other values – civil discourse, reasoned debate – but definitely not free speech. Of course, it’s a bit disingenuous of me to pick Kaepernick as an example, because this fallacy is currently far more common on the right – the Kaepernick incident is one of the few recent cases when I’ve seen columnists invoke it from the left.

CNN did not commit blackmail but did abuse “newsworthiness.”

After some discussion on Popehat yesterday, I’m convinced that blackmail is the wrong way to look at the CNN thing. Blackmail has two elements¹, a threat and a demand:

1. It’s okay to tell my wife about the affair.
2. It’s okay to not tell my wife about the affair.
3. It’s okay to ask me for $50,000.
4. But it’s not okay to condition the choice between (1) and (2) on (3); that’s blackmail.