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Dr. Ruth Westheimer has been the subject of controversy over the last few days for comments she made in interviews and on Twitter about consent — views which are strongly at odds with what she’s written on the subject in the past. I wrote about this stuff a bit yesterday, but since then Dr. Ruth gave an interview with a Washington Post blogger in which she expanded on and underscored her new position:

“Loud and clear: In the Jewish tradition, it says that if that part of the male anatomy is aroused, the brain flies out of the head. It also says a man doesn’t have enough blood for two heads. What does it mean? If a man and a woman — or two men and two women — are naked in bed together, there is no way that, in the middle, he or she can say, “I changed my mind” and leave. I think people have to take the responsibility that if they are in bed together, they are willing to have some kind of sexual experience. She has no business in bed with him, and he has no business in bed with her if they don’t have an understanding that they will have sex.”

These attitudes received a lot of support on Twitter this week, so it’s worth turning down the snark a bit and saying just what exactly is so wrongheaded and dangerous about them. Here’s a list of nine ways she’s wrong:

One, there’s the business of “the Jewish tradition” — the aphorism that she previously credited to the Talmud about the brain shutting down when the prick stands up. I’ve heard this saying many times (I grew up in New York City, and I like old stuff), and I’ve never heard it as a defense of predatory sexuality. It doesn’t mean that once you get going you can’t stop yourself. It means that people who are turned on often make dumb decisions — foregoing birth control, having sex in unsafe locations, cheating on partners. It’s an observation, not a defense, and to use it as a Get Out Of Jail Free card for bad behavior is a repudiation of everything Dr. Ruth used to stand for in sex education.

Two, Westheimer claims that “there is no way that, in the middle” of sex a man or a woman can “say ‘I changed my mind’ and leave.” Sure there’s a way. You just do it. You stop. If your house was on fire, you’d stop. You can stop. Claiming you can’t stop is rapey balderdash.

But why would you stop? That’s number three and it’s not that complicated. Maybe you ate some bad seafood. Maybe you’ve got a leg cramp. Maybe you got a phone call saying that your dog died. There’s a hundred reasons why a person could decide — without it reflecting negatively at all on the person they’re in bed with — that they’re going to need a raincheck. It happens to most of us eventually, and it’s not a big deal. At all.

Fourth, there’s this: Maybe it does reflect negatively on the person you’re with, and that’s okay too. Maybe you’ve realized that being in bed with this person was a really bad idea. Maybe they let it slip that they’re not really single. Maybe you thought you had a condom and you don’t and the person you’re with responds to that in an obnoxious way. Maybe they say something belittling or insulting. Maybe you’re sobering up and realizing that this whole thing was a mistake. Maybe they’ve got horrible body odor. Whatever the reason, you wanted to before, and now you don’t want to any more — and if you don’t want to, you can stop. In fact, you should stop. There is, as Dr. Ruth herself wrote years ago, “no such thing as a point of no return, a point at which one no longer has the right to decide what will be done to one’s body.” If you want to bail, it’s your right to bail. So bail.

Three and four are lists of reasons, and number fiive is this: You don’t need a reason. Your body, your choice. Period.

“People have to take the responsibility,” she says, “that if they are in bed together, they are willing to have some kind of sexual experience.” This sentence is responsible for numbers six, seven, and eight.

Six is the fact that expressing willingness to have “some kind of sexual experience” isn’t the same as expressing willingness to have any kind of sexual experience. If you want X, and they want X plus Y, and they get petulant or coercive about Y, you know what? They just lost X. They’re being a jerk. Walk away.

Seven is that what right-now-you wants is not a contract that future-you is obligated to uphold. One of the great things about sex is that it’s an opportunity to learn a lot of intimate stuff about someone else really quickly, and sometimes that means that you’re going to learn stuff that’s going to make you want to put your pants back on. Sad for them, maybe sad for you, but if that’s where you’re at, put your damn pants on.

Eight is this: People get in bed with each other without wanting sex all the time. My dad once spent a night being spooned by a friend whose wife had just died. I’ve shared beds platonically at conferences more times than I can count.

And yes, people who are attracted to each other sometimes get in bed together without wanting sex too. “You can stay over if you like, but we’re not going to fool around” is a thing that people say. It’s a thing I’ve said, and it’s a thing I’ve had said to me.

That may not make any sense to Dr. Ruth, but you know what? It doesn’t have to. You know why?

Because nine: It’s none of her goddamn business.

When I write about sexual assault on this site, particularly when I talk about the difficulty in combatting sexual assault, one comment recurs over and over:

“Nobody supports rape.”

Sometimes it’s phrased more delicately than that, sometimes not. But the basic idea is the same — that the ideas of rape culture and rape apologism are ridiculous. Everyone’s against rape. Everyone agrees that rape is bad.

But of course it’s not true.

For starters, of course, there’s the fact that rapists exist in society, most of them unpunished. They’re not against rape. And while estimates of how many rapists are out there vary, it’s clear that they’re not all that rare. We know them. We may not know we know them, but we know them. If you’re talking about rape in public — in a classroom, at a speech, in a crowd, at a rally — there’s a strong chance that some of the people you’re talking to are rapists, and that others are survivors of rape. (This is something worth thinking about when we’re talking about rape jokes — the rapists in the audience. Are they laughing?)

Rapists aren’t the people I wanted to talk about today, though. I wanted to talk about the people who aren’t rapists who are pro-rape.

Because these comments threads that are full of people saying that nobody supports rape? Are also full of people supporting rape. They never say that’s what they’re doing, because in principle, yes, we all agree that rape is wrong. But there’s no other way to describe it.

Take Dr. Ruth Westheimer, the sex-advice icon. Just moments ago she tweeted that she’s “100% against rape.” Why did she feel the need to say that? Because in an interview yesterday she criticized campuses for saying that after two people are in bed together naked, a woman can still say “I changed my mind.”

This wasn’t a slip of the tongue. That’s a direct quote, and she followed it by saying that “no such thing is possible … I don’t agree with that.” She even went back and said it again later in the show.

Today on Twitter she’s saying that it’s “risky behavior” to be naked in bed with someone you don’t want to have sex with, and that’s bad enough. But what she said yesterday was far worse — that if you are naked in bed with someone, and you wanted to have sex but now you don’t, you’re not entitled to change your mind. Why? Because “when he is very aroused, strong erection, when she’s very aroused, either he or she cannot change their mind.”

To say that a man with an erection can’t stop himself is a lie, obviously. It’s an insult, clearly. But it’s also an explicit and direct defense of rape.

Update | Perhaps the clearest, strongest rebuttal to what Dr. Ruth said yesterday and today comes from Dr. Ruth herself. Here’s an excerpt from the “Consent” entry in her Family Encyclopedia of Sex, published in 1994:

“You have the right to refuse any type of sexual contact at any time or place and at any stage in a relationship, regardless of the level of arousal that may exist in a would-be partner. There is no such thing as a point of no return, a point at which one no longer has the right to decide what will be done to one’s body. ‘No’ means No.”

“This may be a difficult concept for some to accept when a woman voluntarily places herself in a situation in which she fears she can be seen to be “asking for it.” In such a situation it may be helpful to acknowledge that a partner is entitled to some frustration or even anger at being told “no.” One’s partner has a right to his or her own feelings. But their rights stop where their partner’s personal space begins. While we all have the right to express disappointment, we do not always have a right to impose our will, and sexual intercourse is one of those situations. ‘No’ means No.”

No means no. Period. It’s not complicated.

June 4 Update | Asked for comment on the recent controversy in an interview with the Washington Post, Westheimer gave a clear, unambiguous defense of her anti-choice position.

This morning the Supreme Court overturned the conviction of a man who had been found guilty in federal court of posting vicious, explicit threats on Facebook. The majority opinion was written by conservative Chief Justice John Roberts.

Sounds pretty bad, right? Mother Jones thought so, titling its post SCOTUS Delivers Good News for Online Trolls. Other outlets quickly followed suit.

But most of these stories were clearly written in haste, and as is so often the case with Supreme Court decisions, the core of today’s ruling isn’t in the soundbites. In fact, this decision is a loss for those who make threats online, and a win for folks who want to see them punished.

So what is everyone getting wrong? Let’s take a look.

Back in 2010, a guy named Anthony Elonis spent a bunch of time on Facebook harassing his estranged wife. Like many internet trolls, he defended his abuse — which eventually grew to target work colleagues, amusement park employees, and even local schoolchildren — as exercises in protected speech. His posts were rap lyrics, he said. They were fictional. They carried disclaimers and links to Wikipedia articles. Free speech, man.

The feds didn’t buy it, and sent two FBI agents to his house. After they left he put up a mocking Facebook post saying he’d wanted to slit the female agent’s throat in his living room, and that he’d been wearing a bomb under his clothes that he would have detonated if they’d tried to arrest him.

It didn’t take long for him to be arrested after that.

Elonis’ defense against the ensuing charges was pretty much what you’d expect. He didn’t really intend to harm anyone, he was engaging in artistic expression, the posts were intended as therapy and catharsis, not terrorism. The jury thought that was garbage, and convicted him on four federal felony charges. Today the Supreme Court set aside their verdict.

At this point, you’re probably wondering where I’m going with this. The guy made obvious, targeted, specific threats, a jury found him guilty, and the Supreme Court tossed the conviction. Win for him, loss for justice. Right?

Not quite. Because one of the things the lawyers argued about at trial was what the jury had to conclude to convict him. His lawyers claimed that unless the prosecution could prove he’d intended to carry out the threats he was innocent, and the government said that his intent didn’t matter — as long as he’d written the words, and a reasonable person would view them as threatening, he was guilty.

The trial judge agreed with the government, and instructed the jury accordingly. Moreover, they allowed the prosecutors to do the same. In closing arguments, one of the government attorneys said that “it doesn’t matter what he thinks” — that what was going on in Elonis’ head when he put up the posts was irrelevant to the case against him.

Whether that prosecutor was right was the question before the court today.

And it turns out, despite what a lot of folks are writing this afternoon, that it’s not a simple yes-no question. The court found that the judge instructed the jury incorrectly, so they overturned the conviction. (Elonis could be tried again, though it’s not clear whether he will be.) But in deciding what the judge should have said, the Supremes didn’t have to pick between Elonis’ position and the federal government’s, and in fact they rejected them both. Why they rejected them, and what they embraced instead, is where things get interesting — and where the targets of online harassment can find a lot to like.

News outlets described the ruling as a narrow one, and in a sense that’s true — the court set several of the relevant issues aside for later consideration. (We’ll get to those in a bit.) But the majority opinion did take on the legal claims that Elonis made in court (and, before that, online), and knocked down the most important of them.

Here’s the biggest: Elonis claimed that for a jury to conclude that his statements were threats, prosecutors had to prove that he intended them as threats — that they had to show he wasn’t joking or writing fanfic or otherwise screwing with his audience.

The court rejected that argument. Flatly.

This is the first victory in the opinion, and it’s a big one. The court said that a threat counts as a threat under federal law not only if it’s intended as a threat, but also if the writer knows it will be interpreted that way:

There is no dispute that the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.

Note that “there is no dispute” language. If you make a threat online, and you know the person who receives it will see it as a threat, you’re guilty of violating federal law. It doesn’t matter if you claim that it’s protected speech, or put a smiley face at the end, or point out later that the threat was really just lyrics from an old Beatles song. If you send a threat and you know it’ll be interpreted as a threat, you’re guilty. Period.

That one sentence will serve as a tremendous weapon in online disputes over threatening speech from today forward. “There is no dispute.” And there is no dispute — the majority opinion in which that sentence appears was signed by seven of the nine justices, and neither of the two who dissented from the opinion of the court disagreed with that aspect of it. It’s unanimous.

And it’s also not the end. Because there’s another possible way of understanding legal culpability here, and while the court didn’t explicitly address that one, they strongly hinted — with backup from an unexpected source — that they’re likely to resolve it in a way that favors those targeted by such threats.

The issue here is the legal standard of recklessness — in essence, willful disregard of the risk of a particular consequence. You can think of it this way:

Elonis said that unless he intended the threat as a true threat, he was innocent. The court knocked that down. He also said that if he merely knew it would be taken seriously, but didn’t mean it seriously, he was innocent. The court knocked that down too. The prosecutors said it didn’t matter what he was thinking, and the court rejected that analysis as well. But it turns out that there’s another way of framing the issue — a way of splitting the difference between the prosecutors’ interpretation and the defense’s — and that’s recklessness.

If he knew his comments would be taken as threats, he was guilty, whether he meant that way or not. But what if he knew they might be taken as threats, but didn’t care? That’s the recklessness standard, and it’s going to be a big deal in future prosecutions.

If you think about it, it’s pretty difficult to prove someone knew somebody would take something as a threat. Not impossible, and not as hard as proving they intended it as a threat, but hard. Proving they considered — or must have considered — the possibility, though? That’s easier. If the recklessness standard is adopted, putting these guys away is easier.

So what did the court say about the recklessness standard? Basically that they didn’t have to address it, so they wouldn’t. The Supreme Court doesn’t like answering hypothetical questions, particularly ones that they haven’t been fully briefed on, and so they decided to leave this one for another day.

Often this happens when the court has a strong majority for a particular outcome, but they’re not sure they’ll be able to hold it together if they fold in another issue. In this instance, though, there’s good reason to believe that the court will likely adopt the recklessness standard down the road.

The case for the recklessness standard is made powerfully in a separate opinion filed by conservative justice Samuel Alito. Recklessness is, he argues, the obvious standard to apply in this instance — precedent, history, and common sense demand it, and justice does as well:

Someone who acts recklessly with respect to conveying a threat necessarily grasps that he is not engaged in innocent conduct. He is not merely careless. He is aware that others could regard his statements as a threat, but he delivers them anyway.

After making his case for the recklessness standard, Alito urges trial-level and appellate judges to embrace it, noting that “nothing in the Court’s noncommittal opinion prevents lower courts from adopting that standard.” Alito is right that the majority did not preclude it, and right that they showed no particular interest in discouraging it. I suspect that he is also right to imply — as he does — that if the court had confronted the recklessness question today, he would have been writing for the majority.

There’s one more thing worth noting about Alito’s passionate and eloquent opinion, and that’s that he directly takes on the question of free speech, and does it beautifully.

The majority sidestepped free speech, saying — as with recklessness — that the question of whether this law is consistent with the First Amendment wasn’t before them today. Alito, though, charges forward. First he demolishes the “intent is magic” argument we see so often on the internet:

Whether or not the person making a threat intends to cause harm, the damage is the same.

From there, he moves on to the question of freedom of expression more generally:

Elonis also claims his threats were constitutionally protected works of art. Words like his, he contends, are shielded by the First Amendment because they are similar to words uttered by rappers and singers in public performances and recordings. […] If [a] celebrity can utter such words, Elonis pleads, amateurs like him should be able to post similar things on social media. But context matters. “Taken in context,” lyrics in songs that are performed for an audience or sold in recorded form are unlikely to be interpreted as a real threat to a real person. Statements on social media that are pointedly directed at their victims, by contrast, are much more likely to be taken seriously. To hold otherwise would grant a license to anyone who is clever enough to dress up a real threat in the guise of rap lyrics, a parody, or something similar.

Threats of violence and intimidation are among the most favored weapons of domestic abusers, and the rise of social media has only made those tactics more commonplace. A fig leaf of artistic expression cannot convert such hurtful, valueless threats into protected speech.

This is great stuff, and we have reason to believe that it will be quoted approvingly in a majority opinion in the very near future.

Today was a bad day for internet harassers, and a very good day for the rest of us.

Update | Fascinating, wonky defense by law prof Orin Kerr of the majority’s decision to sidestep the recklessness issue. As he puts it, federal law on mental states like “recklessness” is “a mess … a mishmosh of confusing common law mental states with some occasional Model Penal Code (MPC) tossed in for flavor.” And while the MPC has a specific, technical definition of “recklessness,” it was written a couple of decades after the law in question, making using the latter to interpret the former somewhat dicey.

Defining “recklessness” is likely to be complicated, in other words, and SCOTUS was — Kerr says — sensible to leave it for another day. An interesting interpretation, not least because it appears to lend support to my impression that the majority found the recklessness standard appealing. (If they were going to adopt a higher, clearer standard, then defining “recklessness” wouldn’t be an issue.)

Second Update | A Scotusblog analysis of today’s decision points out something I (and everyone else I read today) missed — it’s not quite clear that Elonis’ conviction is going to be overturned after all: “It will be up to the Third Circuit, when the case is returned there, to sort out what, if anything, will happen to Elonis himself.” That analysis also points out that this case took an unusually long time to move from oral arguments to decision, typically a sign that the justices are having difficulty coming to agreement.

Third Update | I’ve seen a lot of folks online suggesting that there’s no connection between the kind of speech Elonis engaged in on Facebook and actual violence, so it seems worth mentioning what Elonis is doing these days and why.

Turns out he’s in jail.

Not because of the threats against his ex-wife, though — he was released on those charges last year, having completed the mandatory portion of his sentence. No, this is about unrelated conduct.

Sometime after his release, Elonis started a relationship with a local woman. He moved in with her at some point, and she later asked him to move out. He didn’t. Her mom came to stay with her until he left, and on April 29 the three of them got into an argument over his continued presence. During the course of that argument he threw a metal cooking pot at the mother, hitting her in the head.

He’s been locked up since.

This is the tenth in a series of posts in which I answer uncomfortable questions posed by nervous lefty readers. You can learn more about the series, read the other questions, and ask your own here.

Should men call themselves ‘feminists’? Or ‘pro-feminists’ or something else?

Fun question. Let’s start by saying that this is an issue on which feminists disagree — one of the many, many questions to which there’s no single feminist answer.

Which is, I guess, probably why you’re asking. So let’s jump in.

…

Huh. This is tougher than I was expecting. I’ve been writing and deleting ledes for a few minutes here, going back and forth between variations on “I used to fall squarely in the ‘pro-feminist’ camp, but…” and “I’m pretty much in the ‘pro-feminist camp, except…” Neither framing felt right, though, and I think I just figured out why:

I don’t think there are all that many occasions in which it’s all that necessary for men to call themselves feminist or pro-feminist.

Here’s what I’m getting at. If you’re a guy, and you’re (pro-)feminist, folks should be able to figure that out. If they’re curious, they can ask. What’s the need for a declaration?

Often it’s a way of establishing your credentials, frequently in a discussion with a feminist woman. You’re being slammed for saying or doing something a feminist took as obnoxious. You’re trying to criticize a feminist position while making it clear you’re not an enemy. You’re arguing that someone’s seeing sexism where it doesn’t exist. You’re getting piled on, or worried that you will be. So you say it:

“Look. I’m a feminist.”

And that’s not cool.

For one thing, it’s not going to work. If someone thinks you’re an anti-feminist, or being anti-feminist, saying you’re a feminist won’t change their mind. And it’s not likely to get you any slack, either — if anything, it’ll probably have the opposite effect. Because whether you intend it or not, there’s a good chance “I’m a feminist” is going to be heard as “I understand feminism better than you,” which, realistically, you probably don’t.

Because even if we say men can be feminists, we also have to say that feminism isn’t just theory. It’s something that grows out of lived experience. And a man’s (particularly a cis man’s) lived experience of sexism isn’t going to be the same as a woman’s. For starters, a woman’s lived experience of sexism is going to include a long history of men assuring her that they understand things better than she does, which … whoops, you just did.

I won’t go so far as to say that pulling the “I’m a feminist” card is an anti-feminist act, but yeah, it kind of sort of almost is.

So in that context, the answer to “Should men call themselves feminists?” is easy: No. Because it will end badly for them. But what about other contexts?

I suspect that there was probably a moment in one of my early conversations with my kids about politics that one of them asked me whether I was a feminist, and I’m sure that if that happened I said that I was. I’m pretty sure that as a guy I’ve been in conversations with other guys in which it was assumed that I was anti-feminist, and that I’ve corrected them by saying I was one myself.

So yeah, in those kinds of situations I think it’s fine. Knock yourself out. But honestly those kinds of situations just don’t come up very often.

As always, though, I’m interested in what other folks think. And if there are other contexts I’m not thinking of that anyone would like me to weigh in on, just let me know.

So when I was on Al Jazeera English this afternoon talking about trigger warnings (link coming soon), they played a clip of someone mocking Britain’s National Union of Students’ Women’s Campaign for requesting that delegates use “feminist jazz hands” instead of applause on the plenary floor at a conference this spring. I talked about this on Twitter when it happened, but never got around to writing it up, and since I didn’t get the chance to chime in on the show, I’ll take a moment to do it now.

I think using “jazz hands” instead of clapping at a conference is a great policy. Here’s why.

I’ve participated in, and chaired, a lot of big student meetings. They can be hugely intimidating for people who aren’t used to public speaking. However old you are, whatever background you come from, it can be terrifying to get up and speak in front of hundreds of people. And that’s particularly true if — as at a national activist conference — what you’re going to be saying is likely to be contentious, or deeply personal, or complex.

Because of this, every deliberative body has rules of protocol. Often they ban outbursts — either positive or negative — from the floor while someone is speaking. That’s not new, or weird.

But jazz hands instead of clapping? That’s weird, right?

Nope. I’ve seen it plenty of times before, and with good reason.

Applause can drown out the speaker, particularly in a big room. It also slows everything down, dragging out the proceedings and gumming up the works. Beyond that, even positive feedback from an audience can be distracting, even disconcerting. It’s easy to lose your train of thought if people start clapping when you’re not expecting it. (I speak in public for a living, and I have for decades, and I still sometimes get thrown off by applause.)

Also, just as booing or hissing or other negative responses can make people less likely to speak up in the future, cheering or clapping for one speaker can discourage  others from disagreeing. And it’s not even necessarily about fear — you may decide the body has its mind made up, so you don’t say the thing that could in reality make them reconsider.

For all of these reasons, my personal preference when chairing a plenary is that all audible expressions of support or opposition to speakers be disallowed. It makes meetings run far more smoothly and quickly, and encourages the kind of engaged, robust deliberation you’re looking for.

So yeah. It’s easy to mock wacky feminist students and their wacky feminist ways. Always has been, always will be. But this time the wacky feminists were right and their mockers were (and are) wrong.