May 06, 2006

So Much Garbage, So Little Time

Really, there just isn't time. But on the other hand, the idiocy is so obvious, it's not even necessary to take the time.

Involuntary Sexual Arousal and Touching: Say that someone intentionally taps you on the shoulder to get your attention, or intentionally pats you on the back to compliment you, or even touches your arm in conversation or hugs you when parting. You might be slightly put off, at least under some circumstances, but the law would (and, I think, should) consider this to be well within the boundaries of permissible behavior. Not all unwanted touchings are batteries.

Say, on the other hand, that someone intentionally touches your genitals, or intentionally caresses your breasts (if you're a woman). In many circumstances, this would be considered a crime. Why the difference? I think that here too there is a connection with sexual arousal -- either the possibility that you might be involuntarily sexually aroused, or the likelihood that the other person is deriving some sort of sexual arousal from touching you.

Of course, unlike in the public nudity / public sex context, here there is unwanted touching; I don't want to overstate the force of the analogy. But as the first paragraph suggested, unwanted touching isn't always improper. What it is it about touching of genitals or women's breasts that makes it improper.

Some might argue that the distinction has to do with a pure implied license theory: (1) The law should prohibit touching that is unwanted and offensive to the touched person. , (2) We can presume -- regardless of the reason for the distinction, but simply as a matter of empirical generalizations about people's actual preferences -- that shoulder taps and pats, and parting hugs, are wanted, while touching of genitals and breasts (without some more specific reason to infer permission) is unwanted. (3) Therefore the former shouldn't be outlawed but the latter should be. Yet can that really be right? Say that someone makes clear that he doesn't like hugs or pats on the back; even if we might punish someone who hugs or pats the person over the person's objections, should we really punish him to nearly the same degree as someone who touches another's genitalia over that person's objections?

So while I'm not positive, it seems to me that there's something interesting and possibly important in play here: Some conduct that involuntarily sexually arouses another (or seriously risks doing so) may be improper, even if similar conduct in which involuntary sexual arousal is absent is generally fine.

I know some of you read this blog on a regular basis, but I have never understood why. This post is further evidence of its uselessness.

No really, it's that women are afraid of admitting they're being involuntarily aroused.

Wait, wait, I can't see. My eyes are rolled so far back in my head.

Via Pandagon.

Posted by binky at May 6, 2006 07:08 PM | TrackBack | Posted to Blogorama


Comments

I think it looks a little different in the context of an ongoing discussion about regulation of public nudity, which I dimly recall they've been batting around.

Posted by: jacflash at May 6, 2006 11:53 PM | PERMALINK

And what does that have to do with unwanted touching, and the asinine theory that unwanted sexual touching is bad because it might lead to involuntary arousal?

Posted by: binky at May 7, 2006 12:31 AM | PERMALINK

That does seem silly, but he's clearly just thinking out loud. They're all riffing off of this. Legal masturbation bores me so I haven't followed it, but I know Eugene Volokh isn't an idiot. How would you explain, as a legal principle, why it's okay (as a matter of law) for a random person to touch shoulders but not crotches, or for that matter to touch my chest but not yours? If there's a so-obvious-you-have-to-be-an-idiot-to-miss-it answer, then I'm going to have to sit with the idiots.

Posted by: jacflash at May 7, 2006 08:35 AM | PERMALINK

Actually, I thought it was fine for strangers to inadvertantly touch any part of you: it's a mistake (a genuine one), and that comes under some sort of no-harm-no-foul idea. In that case, it doesn't matter if someone touches my shoulders, head or whatever. Mistakes are mistakes.

In the other category, any deliberate (unwanted) contact on any part of the body is wrong (both morally and legally).

Am I missing something?

Posted by: baltar at May 7, 2006 09:07 AM | PERMALINK

In the other category, any deliberate (unwanted) contact on any part of the body is wrong (both morally and legally).

The "unwanted" part is the tricky part. If I tap a stranger on the shoulder to point out that the bartender is trying to hand her a drink, that's deliberate (on my part) but is unlikely to be unwanted by most people. While there are people for whom that would feel like a violation, it probably shouldn't be illegal. Yet if I touch her breast deliberately (without invitation), we all agree that's bad and should be illegal. I think what Volokh was (clumsily) trying to get at was, what is the legal principle that makes the breast-touching different from the shoulder-touching? (I say it's probably a presumption of the toucher's intent, but I'm not sure that's a complete answer.)

Posted by: jacflash at May 7, 2006 11:19 AM | PERMALINK

I think the comments thread over at Crooked Timber does a fine job explaining why focusing on the recipient's unwanted arousal is bullshit. Check it out.

Posted by: binky at May 7, 2006 11:26 AM | PERMALINK

I've got to go with Binky on this one.

Oh, and for the record, I still check that site occasionally so I see what they are thinking. They are a set with connections to and influence on a lot of people. But I don't check it nearly as often as I used to, now that Orin Kerr has his own blog.

Posted by: Armand at May 7, 2006 11:42 AM | PERMALINK

As with the legal materials Volokh often analyzes, you must read carefully. Read these two sentences, as we say in the law, in pari materia, and you have to realize that the discussion here, while perhaps idiotic (nodding to jacflash; they have, indeed, been batting around public conduct generally of late at VC), is not gendered.

Say, on the other hand, that someone intentionally touches your genitals, or intentionally caresses your breasts (if you're a woman).

+

What it is it about touching of genitals or women's breasts that makes it improper.

=

A comment, such as it is, that is equally directed at the touching of taboo locations on both male and female bodies.

So curse the discussion for positing an arousal rationale if you like, but in fairness there's no (textual) reason to curse it for positing something that specifically imputes to women a likelihood for involuntary arousal it does not impute to men.

As noted above, Volokh's no idiot, and rarely if ever posts anything that would justify one in ascribing serious gender bias to him -- indeed, I think the contrary is manifest in his blog ouevre.

And going one step further, again textually, he alludes to "possible" recipient arousal while noting "likely" perpetrator arousal; he's principally placing the arousal aspect of the issue where it belongs -- in the grubby fingers of the fondler.

Posted by: moon at May 7, 2006 02:18 PM | PERMALINK

Volokh is an idiot.

Belle's already done it, so I'm not going to. Vibrant thread, concise refutation with a quick zero-in on why Volokh is, in fact, an idiot.

Now, the premise here is that unwanted sexual arousal

forms the basis of objections to unwanted touching of, say, a woman’s
genitals by a stranger on the subway. Now, I would be inclined to give
Eugene the benefit of the doubt here. Except for the part where he
totally forfeits my trust.

Why the difference? I think that here too there
is a connection with sexual arousal—either the possibility that you
might be involuntarily sexually aroused, or the likelihood that the
other person is deriving some sort of sexual arousal from touching you.

Again, taken alone, this might be reasonable, if
only in a thought-experiment way. But the conclusion? Does it perhaps
exclude the most obvious problem? Sources say, yes:

So
while I’m not positive, it seems to me that there’s something
interesting and possibly important in play here: Some conduct that
involuntarily sexually arouses another (or seriously risks doing so)
may be improper, even if similar conduct in which involuntary sexual
arousal is absent is generally fine.

Wait, remember above, where we were considering both the possibility that unwanted sexual contact should be avoided because it might cause unwanted sexual arousal in the victim and

the crazy, totally improbable problem that the person feeling you up on
the subway might be sexually gratifying himself at your expense without
your permission? What happened to option two, eh?

And then, having knotted the noose in boy scout fashion, Eugene just sticks his head right in:

It[unwanted
sexual touching of a woman’s breasts or vagina by a stranger] may be
both arousing and disturbing; it might in fact be disturbing partly
because of the arousal, or of the possibility of arousal.

Now
look. I somewhat hesitate to claim magic feminist backsies on everyone
who disagrees with me. But. I’ve actually been raped before! Sweet! And
I have sat next to someone on the DC metro who was jerking off while I
was sitting next to the window and had trouble getting out. I sort of
feel like I’m pointing at the sky saying, “hey, it’s teh blue!” The
problem of a dude rubbing his thigh against yours while he jerks off is
not, and now I must get all caps, NOT, a
problem about involuntary sexual arousal on your part. No, it’s more of
the problem of where a dude is rubbing on your thigh and jerking off.
And my sister got assaulted in the metro elevator before when she was
13 and when she punched and kicked the guy trying to feel her up he
broke her jaw in 3 places! Again, and I hate to get all irritated, but
the problem was NOT that she was geting all turned on by that guy. So, in short, WTF? And then, W.T.F.???

And, further, in his final abandonment of the more reasonable explanation (which Belle categorizes as sticking his head right in) Volokh talks about touching vaginas. Involuntary touching of the vagina involves penetration. Or maybe he's so smart he doesn't have the time to distinguish between vagina and vulva.

Posted by: binky at May 8, 2006 12:41 AM | PERMALINK

And this should just about drive a stake through this vampire/frankenstein/zombie/whatever that Volokh was on about.

Posted by: baltar at May 8, 2006 03:24 PM | PERMALINK

Gene Volokh isn't an idiot? Maybe just an ignorant bastard.

I made a comment about not trusting someone who called himself Russian when he was from the Ukraine. He was born in Kiev, the capitol of Ukraine. His response:

"I was born into a highly Russified segment of society in what was at the time a highly Russified city in a latter-day Russian Empire. I almost never heard Ukrainian spoken, and Russian was my first language."

Well, it is the capitol of the Ukraine, there might be a couple of Ukrainians hanging about.

Which got to my response which dealt with the fact that Ukrainians see Russians as occupiers. They were forced to speak Russian under the Soviet Union. Never mind the Holodomor, a massive famine caused by Soviet Policies.

Add in Chernobyl.

Why would the Ukrainian like the Russians?

That's just what I see as his ignorance of the history of the country he was born in.

His legal opinions aren't very good and he is a law professor, but I don't think he is a member of a bar or actually practised law.

But that is pretty typical for most US law professors.

The only thing Volokh is good at is carpeting the internet with his opinions, which some people are beginning to see as total crap.

Posted by: Nobody at June 23, 2009 07:21 AM | PERMALINK

Nobody, many law profs don't practice law for more than a few years, but very few don't practice law at all.

As for the whole bracketing of "it" in Belle's concise critique, when he used it, he used it in a comment referring back to this comment by one Neal R.:

"I have a hard time imagining how anyone could be turned on by an intentional and unwanted touching of the breasts or genitals. Wouldn't 99.9% of people find that intrusive, debasing, and/or insulting?"

So the operative word I see here is "genitals." Granted, it's used alongside "breasts," but breasts are an acknowledge source of stimulation for women in a way that no male corrolary non-genital body part is, at least with any sort of uniformity.

Maybe I'm crazy, or a "moron" like Eugene Volokh (and, frankly, I can think of much worse things than to share his catbird seat in legal academe), but I still don't see how this is scandalous. Sloppy, perhaps. Probably prosaic. But the taking apart in the initial post of one -- as best I can tell -- failure to specify two-gender applicability (for heuristic purposes -- not as a function of relative frequency) among several instances when he carefully made it applicable in either direction (not to mention manifestly working among same gender pairings as well) seems to sort of defeat the purpose of a law school hypothetical, which is what this is.

This is probably, if nothing else, an argument against blogging. Obviously, if you don't cite- and cross-check your intellectual naval-gazing, a big part of the job for a law prof of as diverse interests as Volokh, you get raked over the coals by an army of semanticists determined to find in a discussion that, at its outset -- as a heuristic -- was stated so as to apply in all gender permutations, an empirical cant. That cant as there as a matter of statistical fact -- viz., many many more women are victimized, and almost exclusively by men -- but that's not the work of law-school hypotheticals.

So that's it -- nothing but the delayed gratification of a 300-footnoted Law Review article for you! See your ideas next year.

Also, n.b., any intentional touching of any kind that is unwanted is a textbook battery. Period. This encompasses touching a stranger on the shoulder to get his attention. Of course it's a meaningless, functionally irremediable sort of battery, but it is, nonetheless, an "intentional" tort, in the sense that the tortfeasor "intended" to touch the individual in question -- the intent to trouble someone, or to violate their known wishes, is not necessary to establish intentionality in the tort context.

{Ducks}

Posted by: moon at June 23, 2009 03:34 PM | PERMALINK
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