I’ve got somewhat unsettled thoughts about the whole California yes-means-yes law myself, with sympathy for multiple sides in this debate, ranging from Ezra Klein’s much-maligned piece defending a law he himself thinks is lousy, to Fredrik deBoer’s critique of the law as more likely to be used against the innocent-but-weak than against the most successful campus predators, to Heather MacDonald’s piece back-handedly defending the law as the restoration of Victorian relations between the sexes. But as is my wont, when I’m not sure what I think, I look for a proof text to interpret. This time, I came up with two.

The first direction I went, in thinking about the law, was to wonder: what’s the libertarian take on the question? It wasn’t obvious to me. On the one hand, libertarians tend to be highly skeptical of intruding the clumsy hand of the state into the private sphere. And this intrusion is going to be pretty darned clumsy. On the other hand, libertarians tend to have pretty strong, even absolute, views on private property rights. Such absolutism makes, if anything, even more sense when it comes to the use of our own bodies than if we’re talking about, say, the right to use groundwater. And in general, if you own property, nobody has the right to use that property without your affirmative consent. If I’m your neighbor, and we have basically friendly relations, been to each other’s barbecues and borrowed each other’s lawnmowers, I still can’t presume the right to draw groundwater from your well without explicitly asking and getting explicit permission.

And – as it happens – I found a proof text for precisely this question, from one of the foundational libertarian works: Robert Heinlein’s The Moon Is a Harsh Mistress. For those of you who were not quite such dire sci-fi nerds as I was as a pre-teen and teenager, Heinlein’s novel is about a revolution on the moon, prompted, as it happens, by ecological concerns, but intended by the author to demonstrate the viability of a society without law or government as we understand it. His Luna is a prison, but, being practically impossible to escape from, the wardens don’t really do anything to police the populace. Since they won’t allow anything like a government or a police force to develop either, though, the populace has, perforce, come to customary solutions to a variety of social problems that are enforced in an ad hoc fashion rather than through a process of positive law. For example: relations between the sexes.

In Heinlein’s imaginary lunar society, there’s an imbalanced sex ratio as a consequence of the predominance of males among the deported convict population. As a consequence, in his imagination, the “clearing price” of female consent to sexual relations is very high – and, as a consequence of this, women wind up basically having complete control over sexual relations. In his words, put into the mouth of a native Lunarian trying to explain Lunar society to a tourist from Earth who nearly got himself killed by a gang of teenage toughs for making a pass at “their” girl:

“You have no choice, she has all choice. She can hit you so hard it draws blood; you dasn’t lay a finger on her. Look, you put an arm around Tish, maybe tried to kiss. Suppose instead she had gone to hotel room with you; what would happen?”

“Heavens! I supposed they would have torn me to pieces.”

“They would have done nothing. Shrugged and pretended not to see. Because choice is hers. Not yours. Not theirs. Exclusively hers.”

Now, it so happens that this fantasy of Heinlein’s bears absolutely no resemblance to what societies with highly skewed sex ratios actually look like. Heinlein presumes that the spontaneous order that would arise in the absence of authority would treat women not merely as valuable prizes but as agents. If you don’t make that assumption, and instead think about any other scarce, high-priced resource and how it would likely be allocated in a state of nature, it doesn’t look much like Heinlein’s fantasy. In reality, a high proportion of women in highly-skewed societies like North Dakota’s oilfields work as sex workers employed by men to service other men rather than as free-spirited women freely choosing to spend their “valuable” sexual services in whatever fashion maximizes their own personal utility function. The dynamic is undoubtedly different at, say, Cal Tech – but toxic misogyny, the too-frequent refuge of men who see themselves as losers in a ruthless contest for female attention, is not exactly unknown in those precincts.

More to the point, it’s worth noting that Heinlein’s vision for what a spontaneous order would look like is heavily dependent on assumptions about how male violence specifically would play out. Though the women of Heinlein’s Luna are fierce fighters, he isn’t really fantasizing about Amazon women on the moon. He’s fantasizing about men enforcing a collectively-beneficial norm granting women complete control of sexual relations through fatal violence against men who violate that norm. In other words: even in this libertarian fantasy, female agency is underwritten by an implicit cartel between men relating to how their violence will be deployed. Men who don’t understand what a woman’s love is worth, or never expect to experience it, are not going to join that cartel.

None of this is to suggest that female agency has no role on the “lawless” frontier. I cite “McCabe and Mrs. Miller” as my proof-text for that aside. But where I really want to go next is to another filmic proof-text.

Because: if I’m right that even deeply libertarian thinking about the question of relations between the sexes necessarily smuggles in questions of character – male character specifically – under the radar, then what kind of character are we actually looking for? Is Heather MacDonald right that the feminists are kissing cousins to the Victorians, and that what is really wanted is a return to the “default no,” and a much higher risk premium associated with sexual exploration?

I’m doubtful. And I cite “The Philadelphia Story” as my proof-text this time.

In that classic film, Katherine Hepburn plays Tracy Lord, a furiously moral woman who left her first husband, C. K. Dexter Haven (Cary Grant) because of his drinking, and is now  preparing to marry a completely different man: George Kittredge (John Howard), a highly moral self-made man who puts her on the same pedestal on which you might imagine she places herself. But you’d be wrong. Over the course of what is, at times, a quite painful film to watch – the movie is downright cruel to Lord at times, particularly when her father returns to the scene to berate his daughter for being the cause of his infidelities (you heard right) – Tracy Lord learns that she wants something quite different than she thinks. She doesn’t want someone who is good, who is upright, who behaves rightly, and who worships her as a proper object of neo-Victorian veneration. She wants to be loved.

She learns this by getting sloppy drunk with yet another character, an impoverished but brilliant writer and disgruntled hack, “Mike” Macaulay Connor (Jimmy Stewart), with whom, when the dawn finally breaks on a very long night before her scheduled wedding, she’s convinced she’s just had a sordid one-night-stand – a realization which fills her with self-loathing.

But she’s under a misapprehension. Her virtue is intact. And her dialogue around the revelation of that fact is instructive:

Connor: Kittredge, it may interest you to know that the so-called ‘affair’ consisted of exactly two kisses and a rather late swim . . . All of which I thoroughly enjoyed, and the memory of which I wouldn’t part with for anything . . . After which I deposited Tracy on her bed in her room, and promptly returned down here to you two – which doubtless you’ll remember.

Tracy: Why? Was I so unattractive, so distant, so forbidding, or something – that – ?

George: Well, this is fine talk, too.

Tracy: I’m asking a question.

Mike: You were extremely attractive, and as for distant and forbidding, on the contrary. But you also were a little the worse – or the better – for wine, and there are rules about that.

Tracy: Thank you, Mike. I think men are wonderful.

Now, your average undergraduate is unlikely to measure up in wit or presence to the likes of Tracy Lord or Macaulay Connor, but that’s not the point. When Mike says Tracy was both a little the worse and a little the better for having drunk too much, or when Tracy worries that perhaps Mike didn’t take advantage of her incapacity because he wasn’t attracted to her (or worse, was afraid of her) – that’s not the shallow, sordid dynamic that George Kittredge thinks it is. For her own good, Tracy Lord needed to lose control, needed to let herself take some stupid risks.

Nonetheless, the scene would have played out very differently had Mike not understood that “there are rules” about the situation he found himself in with Tracy. What underwrites the happy outcome isn’t Kittredge’s Victorian rigor, but an altogether warmer version of male restraint – a version that can delight in being with a woman who’s a little out of control, while remaining enough in control himself to be able to imagine what she will ultimately regret or resent, and to bring that imagination to bear on his actions.

I don’t know about men in general, but Mike specifically is wonderful, and a wonderful model to hold up (and a more plausible one for most of us to emulate than the magisterially aristocratic C. K. Dexter Haven). But there’s still that asymmetry. The safety that makes it possible for Tracy Lord to find herself is underwritten by Mike’s basic human decency. The opposite is no doubt true as well – indeed, Liz’s frankly superhuman patience with Mike in the very same film is a necessary contributor to his freedom to find himself. My point is that in each of these situations, this asymmetry obtains. My freedom to explore depends on your willingness to show patience, restraint, maturity that, in some measure, exceeds mine. And vice versa.

This isn’t an order that can arise spontaneously. It’s also not an order that corresponds to a neo-Victorian assignment of essential sex roles, nor to “pink police state” regulation. The “rules” that Mike is talking about aren’t laws you follow for fear of punishment or shame, but rather the internal evidence that you have the moral imagination, and moral courage, to be a decent human being. That has to be taught – and it has to be taught by everyone.

Not everyone can learn how to be a decent human being – but I have faith that most can. The bulk of the harm “yes means yes” is intended to correct is inflicted by a small minority of predatory individuals. But in a world where decency is commonplace, and we mostly know what it looks like, perhaps the truly predatory will be a little easier to spot.