Re: No, Really

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Posted by: [redacted] | Link to this comment | 10-11-03 6:45 PM
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Isn't the argument just that any other word or phrase will be subject to the same possible insincere use and therefore, the search for another phrase is a diversion from the underlying causes of insincerity (by females) and misperception (by males)?


Posted by: ogged | Link to this comment | 10-11-03 7:23 PM
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Oh, and debt noted. You could really put me in the hole this way.


Posted by: ogged | Link to this comment | 10-11-03 7:24 PM
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Isn't Lithwick misunderstanding Easterbrook here? I take Easterbrook as arguing that saying "no" after five minutes of necking and then *doing nothing else* to protest a sexual encounter does not constitute forceful resistance. And everyone -- men, women, juries -- understand this. The issue here isn't linguistic shift of meaning around "no," it's that one use of the word "no" doesn't in fact signal irrevocable opposition. Any rule under which saying "no" once, at any point, suffices to prove lack of consent (as opposed to, say, creating that presumption). will be problematic. Humans don't speak this way. Whether the topic is sex, borrowing cars, whatever, there's wheedling, negotiation, and revision of initial objections. As I take Easterbrook, he's saying that if we're going to pretend there's a magic phrase, it really should be powerfully charged: "no" isn't, "get your hands off me, I don't want to do this" seems a better candidate.


Posted by: baa | Link to this comment | 10-12-03 8:51 AM
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A distinction is in order: legal vs. (let's call it) natural use of the word "no."

Lithwick recognizes both; the issue for her is which will exert a pull on the other.

Easterbrook is saying that we should find a phrase that doesn't suffer from the natural ambiguity of "no." Let's make the standards accord with the way humans speak.

Lithwick disagrees. The real problem, as she sees it, is that situations and culture make any phrase that serves the purpose of "get the fuck off me" mean less than it should. Rather than find a new phrase, she wants us to stick with the phrase we have and make it mean more (which is to say, make it mean what it says). (Also note that the burden isn't solely on men here.)

So, fontana, it's crucial to include the preceding clause that you left out of what you quoted: "The law is clear:...." Yes, we all (Lithwick included, baa), know that when people say "no," they don't always mean it. But she wants us to think of sex differently as a situation, such that "no" really does mean "no" in a sexual context.


Posted by: ogged | Link to this comment | 10-12-03 12:52 PM
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Posted by: [redacted] | Link to this comment | 10-12-03 1:11 PM
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We're not through with Dahlia yet.

"it suggests that she doesn't think that there are insincere, misleading, etc., uses of no"

Not so. She recognizes that there are misleading uses, but she means that the definition of "no" is just as unambiguous as the definition of "this is rape." I do think she's sloppy here, but I take "signals" to mean something like "is by definition." I think, in fact, that that's a large part of her point: the problem isn't that "no" is ambiguous, it's that it's used ambiguously, and any word or phrase used in its place will acquire the same ambiguity.


Posted by: | Link to this comment | 10-12-03 5:27 PM
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Oh, I get it. That the term is used to signal things besides non-consent is a matter of speaker meaning not sentence meaning, so the term means what it does, unambiguously, and is used in ambiguous ways, which makes it like most other terms.


Posted by: fontana labs | Link to this comment | 10-12-03 5:35 PM
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Right. Too bad my continental philosophical education didn't include those terms, I guess we could have saved some trouble. (That comment before yours was mine, as you might have guessed.)


Posted by: ogged | Link to this comment | 10-12-03 7:19 PM
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No, my bad, it was pretty clear from what you said earlier, but I managed to miss it. My only excuse: I was listening to the awesome dsico mash-ups that Belle just linked.


Posted by: Fontana Labs | Link to this comment | 10-12-03 8:56 PM
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