California Bill Brings Government Into the Bedroom

With all the other drama in the news, the May 29 vote by the California State Senate to pass a bill that ostensibly targets sexual assault on college campuses has gone largely unnoticed. Yet the bill, SB-967—which now goes to the state assembly—deserves attention as an alarming example of creeping Big Sisterism that seeks to legislate “correct” sex. While its reach affects only college students so far, the precedent is a dangerous and potentially far-reaching one.

The bill, sponsored by state Senator Kevin De Leon (D-Los Angeles) and developed in collaboration with student activists, does nothing less than attempt to mandate the proper way to engage in sexual intimacy, at least if you’re on a college campus. It requires schools that receive any state funds through student aid to use “affirmative consent” as the standard in evaluating sexual assault complaints in the campus disciplinary system. According to the bill:

“Affirmative consent” is an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity. Consent is informed, freely given, and voluntary. It is the responsibility of the person initiating the sexual activity to ensure that he or she has the consent of the other person to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Consent must be ongoing throughout a sexual encounter and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

The idea that “no means no” is not enough and consent requires an explicit “yes” has long been the dogma of feminist anti-rape activists. In the early 1990s, Ohio’s super-progressive Antioch College was widely mocked for its code of student conduct that mandated verbal consent to each new level of intimacy. But despite the ridicule, sexual misconduct policies requiring clear, explicit agreement to specific acts continued to spread to campuses across the country. While many of these codes do not absolutely require verbal consent, they strongly encourage it with warnings that “relying solely upon non-verbal communication” can lead to mistakes and misunderstandings. (The initial draft of the California bill contained such language as well.) With such rules, a college disciplinary panel evaluating a complaint is likely to err on the side of caution and treat only verbal agreement as sufficiently clear consent.

Student activists, aided by the social media, have also been conducting a reeducation campaign advocating for “consensual sex.” One might think consensual sex needs no advocacy; but, of course, this is not consent as traditionally understood. The norm this movement seeks to promote, according to a recent New York Times report, is to “ask first and ask often before engaging in sexual activity.” Since the activists realize that this doesn’t sound particularly appealing, they endeavor to “make consent cool” through various gimmicks: a website featuring a fictional line of Victoria’s Secret lingerie decorated with slogans like “consent is sexy” and “ask first,” giveaways of real condoms with similar mottoes (“ask before unwrapping”), and even, at Columbia University freshman orientation, candy prizes for “creative ideas” about negotiating consent.

To counter the common view that such negotiations are awkward moment-ruiners, the activists quoted in the Times argue that explicit consent can be “fun” and even ensure better sex through communication. Educational posters on the Columbia campus proclaim that “asking for consent can be as hot, creative, and as sexy as you make it.”

With all these earnest reassurances, one can’t help wondering if the consent evangelists really believe what they preach: the ladies (and their gentlemen allies) do protest too much. Moreover, their protestations are belied by the fact that the preaching is backed by undisguised coercion. In feminist educator Bernice Sandler’s list of “Ten Reasons to Obtain Verbal Consent to Sex,” the assertion that “many partners find it sexy to be asked, as sex progresses, if it’s okay” is followed by “Because you won’t be accused of rape” and “Because you won’t go to jail or be expelled.” Fun, fun, fun.

To say that sex without consent is rape is to state the obvious. But in traditional sexual scripts, consent is usually given through nonverbal cues. Of course this doesn’t mean that people never talk during sex; but there’s a big difference between sweet nothings and mandatory negotiations based on constant awareness that you may be raping your partner if you misread those cues. And “constant” is no exaggeration. Thus, the sexual assault policy at California’s Occidental College states that “individuals choosing to engage in sexual activity must evaluate consent in an ongoing manner” and that consent can be withdrawn through an explicit “no” or “an outward demonstration” of hesitation or uncertainty, in which case “sexual activity must cease immediately and all parties must obtain mutually expressed or clearly stated consent before continuing.” Whether anyone could feel “sexy” under such conditions seems dubious at best.

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Owners get squeezed

It’s been four years since Doreen Zayer raised prices at Relax on Cloud Nine—her 14-employee massage, yoga and spa studio on Staten Island—even though she’s facing rising costs for overhead.

She says her largely middle-class clients simply don’t have the discretionary income they once did to treat themselves, so they’re doing things like stretching out the time in between visits and aggressively looking for special deals whenever possible. That’s true even when they get massages to reduce pain.

“There’s cautiousness about spending money now,” said Ms. Zayer. “People are looking for value these days because they’re feeling squeezed.”

As a result, the studio—which charges $15 for a drop-in yoga class and $45 for a half-hour “mini-facial”—has little choice but to absorb the rising tab for real estate taxes and electricity, among other expenses. That isn’t easy: Ms. Zayer’s operating costs are up around 10% from about two years ago, despite her closing one of her stores in 2010 as well as shuttering a mobile unit used at events such as golf outings.

With “under $1 million” in annual revenue, the company is barely breaking even. Ms. Zayer has tried to increase sales, adding acupuncture and more yoga to her offerings about six months ago. That has helped, but not enough to offset the hit it has taken since the recession. “The last couple of years, we’ve just been covering our butts,” she said.

Ms. Zayer is hardly alone. Like many small business owners in New York City who serve a largely middle-class customer base, she’s experiencing the effects of today’s economic pinch. The fact is, members of this target market are struggling financially as the costs they must pay for everything from groceries to rent to education are rising. The consumer price index for food prepared at home, for example, rose 3.9% from February to April alone, driven by steep increases in costs for staples such as meats, poultry and eggs.

Meanwhile, as in the nation as a whole, median household income in the New York area has declined recently. As a result, these consumers are watching their pennies—and the companies serving them are feeling it. “The middle-class income squeeze is definitely hurting small businesses,” said Bruce Bachenheimer, clinical professor of management and director of the Entrepreneurship Lab at Pace University.

The situation is particularly acute in New York. “Because of the high cost of living in general in New York, you see these pressures on the middle class even more,” said Mr. Bachenheimer.

Just look at housing costs. The average rent in the city, excluding Staten Island, rose 1% from the first to second quarters of 2013, to $3,017, considerably more than the national average of $1,062, according to Reis, a real estate research firm.

No relief in sight

Worse, economists and business experts say the middle class isn’t likely to feel relief anytime soon because of such factors as stepped-up global competition and an increasing tax burden. Small businesses that cater to middle-income customers are having trouble turning a profit as a result.

“Small businesses are struggling with lower demand and the expectation of greater value while their rent and other costs aren’t going down proportionally,” said Jeffrey Carr, clinical professor of marketing and entrepreneurship at New York University Stern School of Business. In addition, though the growth of Groupon-like sites has slowed, consumers have now come to expect deals and price reductions. The upshot: “This may be the new normal for some time to come,” said Mr. Carr.

Certainly, not every small business with a middle-class customer base has felt the pinch. That’s especially true for companies with services and products that help consumers stretch their dollars or avoid big purchases, such as auto-body repair shops and quick-serve restaurants.

“I see some of these businesses doing really strong volume,” said Stephen Sheinbaum, CEO of Manhattan-based Merchant Cash and Capital, which provides alternative financing to small businesses.

Still, many small business patrons are spending less. That’s the case at Schatz Steinway, a 118-year-old family-owned seller of paint, wallpaper and window treatments in Astoria, Queens. Thanks to slow demand, the eight-employee company has not been profitable for the past two years, according to owner Richard Plush, who declined to provide information on the shop’s revenue. Even business on Saturdays, once prime time, has slacked off. “People used to line up,” he said.

According to Mr. Plush, more customers also are choosing to repair such products as blinds, rather than replace them, which hurts his sales of these items. In response, about seven months ago, Mr. Plush reduced store hours to one late night a week from two.

In some cases, businesses have tried to cope by adding new products or services. Two years ago, Linda Vinciguerra, owner of Linda Lingerie Boutique on Staten Island, started selling more products for men. Still, the company, which has “under $1 million” in revenue, is not profitable. “I’m paying my bills, but I’m not getting a salary,” she said.

Slow demand

What’s more, for business owners like Dan Scaglione, a partner in Scaglione Brothers Bakery in the Morris Park section of the Bronx, it is hard to invest in expansion. Nine years ago, he added a deli to the enterprise, which was started in 1944 by his grandfather. It contributes most of his annual revenue of less than $1 million, according to Mr. Scaglione. Even so, he’s seen demand slow down and is loath to raise prices for fear of scaring off patrons.

He’d like to add other revenue streams, but hesitates.

“The stuff we sell is mostly perishable. It can’t sit on the shelf for three weeks,” he said.

Against this backdrop, pretax profit margins are approximately half what they were about six years ago. “If we didn’t own the building, we would have closed up by now,” he said.

Established businesses aren’t the only ones that are finding it hard to attract the middle-class consumers they are targeting, even when they are focused on those with a bit of discretionary income.

Darren Carbone, who owns a LaVida Massage franchise on Staten Island with 12 employees, has been luckier than some. In business for just 16 months, “we didn’t get the boom I thought we’d see this past Christmas,” he said. Still, demand has been increasing steadily. “We’re up week to week, quarter to quarter,” said Mr. Carbone, whose business took about 15 months to break even. “But it’s slower growth than I’d expected.”

A version of this article appears in the June 9, 2014, print issue of Crain’s New York Business.

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