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. [UPDATE: For more on the latter point, which on reflection I think I probably underemphasized, see here. Also, to make clear what I thought would obviously be clear when we were talking about nonconsensual and illegal touching -- and what I expressly said in

All Related Posts (on one page) | Some Related Posts:

  1. Unwanted Touching, Indecent Exposure, and Sexual Arousal:
  2. Smoking on Public Streets:
  3. Libertarianism and the Regulation of Public Space:...
  4. Yuck, Public Spaces, and Urine:
  5. Involuntary Sexual Arousal and Touching:
  6. Should Public Sex and Nudity Be Legalized II - More Yakking about Yuck.
  7. Public Nudity and Public Sex, Beyond the Yuck:
  8. Should Public Sex and Nudity be Legalized?
Ilya Somin:
The harm in unwanted sexual touching is not involuntary sexual arousal of the person being touched, but rather the fact that the toucher is using the person's body sexually without his or her consent. This might be worse than other forms of unwanted touching for any number of reasons (the most significant probably being the fear of rape that nonconsensual sexual touching inspires in most people, especially women). But unwanted arousal is unlikely to figure significantly on the list. Indeed, if someone is touching you sexually without your consent, disgust, anger, and fear are far more likely reactions than arousal.
5.5.2006 3:50am
Gil (mail) (www):
It's taboo.

It provokes strong emotional reactions. It's obvious that sexual taboo violations are likely to provoke stronger reactions in the victims (and in lawmakers and juries) than non-sexual unwanted touching, and will be met with stronger penalties.

I think this is more a result of social conditioning than anything hard-wired, as others have suggested.
5.5.2006 4:16am
Fishbane (mail):
I fear that this is a question of social norms. Having lived in two EU nations (which had their own slightly differing norms), I'm all for nudity, in that I don't have a problem with it. Many posters have issues with public sex. I have witnessed public sex, and don't have an issue with it. To be fair, I have not had children, and note that this is a flag many use to distinguish.

I have to say, though - the notion of people screwing in the bushes would be more an object of humor in Sweden or Germany (aside from a certain places) than outrage.

Sure, that's tacky . Now. Norms change. And I think that's what a lot of the reflexive "not on my lawn/not in front of my children/that's icky" people are really afraid of.

For the record, I was in a monogamous relationship some years back, which my partner, after some time, wished to transform into a sharing arrangement. I did consider it, and decided that such an arrangement was not for me. Oddly, I'm I'm now in a relationship that could be considered three-sided, on some takes. But that is mostly because of (s) corp law. and how we've structured.
5.5.2006 4:18am
TheGoodReverend (mail) (www):
I think the implied license theory is right. I think the differing punishments for the unwanted toucher and the unwanted sexual toucher can be explained by (2) in the theory as you state it: as a generalization, people don't want to be touched sexually without consent, and people either want to be or don't mind so much being touched casually and nonsexually without consent, and even people who don't like being casually, nonsexually touched still would think it worse to be sexually touched. This leaves at lot of the force of your question, what is it that makes sexual touching different? intact, but reframes it within the implied license structure.
5.5.2006 5:22am
Charles Chapman (mail) (www):
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?
No, because even assuming, for the sake of argument, that the mens rea and/or motive were the same in each case, the harm caused is not.

Consider two other cases. In the first case, one person gently hugs another despite the latter's objection. In the second case, one person slaps the other despite the latter's objection or presumed objection. Would these two cases be punished the same? Of course not. The second caused more harm.

Most women I know would suffer more "pain," object more strongly, and be more upset, if their breasts or gentitals were intentionally touched without permission (even assuming there was no physical pain involved) than if they were slapped.

The pain and damage actually caused matter.

Somehow this reminds me of a criminal law question. Person A points a gun at person B and pulls the trigger with the intent of killing person B, the gun fires, and B dies. Person C points a gun at person D and pulls the trigger with the intent of killing person D, the gun misfires, and D survives. A is guilty of murder. C is guilty of attempted murder. In all jurisdictions I know of, A's sentence is longer than C's sentence. Why? Their intent was the same. Their actions were the same. It just turned out that A was lucky/unlucky.

Returning to Eugene's hypothetical, not only is the damage inflicted not the same, the mens rea and motive are not the same. Any minimally socialized person in our society knows (or is presumed to know) that touching a woman's breasts or sexual areas without permission is more offensive, distressing and, yes, harmful, to her than non-sexually hugging a man without his permission. This, as stated above, need not have anthing to do with any fear or concern on her part that she will involuntarily become aroused. Anyone with any sense recognizes such conduct as more distressing and harmful than run of the mill battery. Thus, anyone who engages in such conduct is more depraved and blameworthy than one who has committed a run of the mill battery.

Rape is treated as special, and more serious case, in criminal law than most other batteries (and indeed other batteries that may cause more "physical" harm, e.g., broken bones, etc.) not because of any fear or concern that the woman might become involuntarily aroused. It is treated different because, even leaving aside the danger of STD's, preganancy, and assuming "minimum" physical harm, it is -- as a matter of long established human psychology -- much more harmful and traumatizing than me getting my nose broken in a fight. (As a matter of evolutionary psychology it may have evolved to be much more distressing because of the dangers of STDs, pregnancy, etc., but that doesn't mean the distress isn't felt in the absence of same.)

I get a sense from Eugene's post that he is attempting to be too rational. He recognize's that sexual battery is different, and wants to know why. He posits the danger of involuntary sexual arousal as the reason why. That is not necessary. The fear, the sense of danger, the sense of violation, is sufficient.

Put another way, if some guy groped me, I would not be worried that I might become aroused. I would still find it far more offensive and distressing than if he slugged me in the shoulder, causing pain.
5.5.2006 5:48am
honeybadger (mail):
According to the Restatement 2d, Torts sec. 19, "A bodily contact is offensive if it offends a reasonable sense of personal dignity." Some areas of the body are more associated with maintaining dignity than others. For example, I know if someone came up and patted me on the arm, I might not think much of it, but if they patted me on the top of the head, I'd be absolutely furious.

It seems that "unwanted arousal" would be far more of a problem for men than it ever could be for women. Mere physical contact doesn't turn me on in the slightest unless my mind is there, too.
5.5.2006 5:50am
logicnazi (mail) (www):
Yes it is obviously about both social norms and harm/damages. Quite simply our society (perhaps for inherit evolutionary reasons) views some areas of the body as private. Thus unwanted touching in those areas is an invasion of intimate space the way patting someone on the back, even someone who doesn't want to be patted isn't.

This is really no different than the disctinctions that are made all the time in 4th ammendment law. Why is it that some areas that one occupies such as your living space get greater protection than other areas such as your work space? Your boss has much greater lattitude to give the cops permission to search your office at work than your landlord does to let them search your apartment even though both of them own that property. The answer is that our homes are more private and thus that search would be more of an invasion. Similarly a touch on the genitals is more of an invasion.

In fact a simple thought experiment will disprove the unwanted sexual arousal/contact. Imagine that Fred has made it public knowledge that he derives great sexual pleasure from just casual touching, more even than from genital touching. It surely would not be the case that the law would now say that patting him on the back is really bad and that touching his genitals is less bad.

Yet if we imagine Jane announcing that she doesn't see the big deal about breasts and that her breasts are not more private or intimate than any other part of her body it seems intuitively true that we should regard someone who chooses to pay her breast rather than her back in a much more favorable light than if they had done this without her announcement.
5.5.2006 6:37am
Tom Tildrum:
Prof. Somin's comment at the top seems exactly right: the person receiving the unwanted sexual touch is being used for the toucher's gratification without consent. In a weirdly clinical sense, it's analogous to theft of services.

Prof. Volokh, I have to admit that the notion that "unwanted sexual arousal" of the person being touched might figure into this analysis strikes me as really quite bizarre.
5.5.2006 8:39am
I've heard this question before. But the licensed way of thinking about it (where we can reasonably presume shaking someone's hand is licensed, their boob? probably not) seems more correct. Think about it like this, sticking someone's fingers up my nose or in my mouth isn't likely to turn either of us on, but I'm still not fine with it.
5.5.2006 9:17am
Stuart (mail):
Eugene, isn't the notion of the "reasonable person" a complete answer? Normal social intercourse includes some kinds of touching and excludes others. As Johng points out, it's as unacceptable to touch someone else's genitals unbidden as it is to put your finger in their mouth or up their nose.

As the saying goes, you can pick your friends and you can pick your nose, but you can't pick your friend's nose.
5.5.2006 9:48am
No One of Import:
or intentionally caresses your breasts (if you're a woman)

So, an overweight man with "man boobs" can get groped and that's ok?

Or slightly more seriously how about that all men (from fit and trim to fat and tubby) do indeed have small amounts of breast tissue?

This reminds me of when men who survive breast cancer (yes, it is rare but it is there) are called liars and such because "men don't have breasts!"
5.5.2006 10:35am
Paul Gowder (mail):
There's an empirical claim in Eugene's argument here, which is that involuntary groping has a reasonable probability of causing sexual arousal in the gropee. Absent that probability, it makes no sense to say that the risk to be avoided from banning nonconsensual sexual touching is one of involuntary arousal.

However, I defy you to find a woman (since women are most likely the victims of involuntary groping) who will say that having some stranger touch her breasts in the street is sexually arousing. I'm not aware of any psychological work on this, but intuitively, it seems highly unlikely that involuntary street touching would be considered arousing by any ordinary touch-ee.
5.5.2006 10:35am
Neal R. (mail):
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?
5.5.2006 10:36am
Juanita Broderick:
What is most puzzling is that Prof. Volokh and a few commenters see a need to dissect the rationale for differentiating between touchings of the back and of the genitals, as if the rationale mattered.
5.5.2006 10:39am
I hadn't realized what a knee jerk conservative I was until I read this series of posts. Since rational arguments fail to support my knee jerk sentiment to suppress public nudity, I'm going to say that Gonzalez v Raich will do the job, where:
Our case law firmly establishes Congress' power to regulate purely local activities that are part of an eco-nomic "class of activities" that have a substantial effect on interstate commerce.

As we stated in Wickard, "even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce."

Combine that with the magnitude of the financial transactions in the pornography industry and then realize that if people are free to see nudity just anywhere then that is certainly going to affect Congress's ability to regulate that industry... I'll let Gonzalez take it from there and get that blanket back over Justice's Bust.

When all else fails there's always the commerce clause.
5.5.2006 10:40am
jack brennen (mail):
On the topic of people with kids I'm surprised that we haven't heard from any parents who find the social norm against breastfeeding in public to be a major problem. Why else other than "yuck" in this limited case of public nudity?
5.5.2006 10:57am
SenatorX (mail):
That Frist add on the right makes me feel like someone is manhandling my genitals.
5.5.2006 10:57am
Eugene Volokh (www):
Neal R.: It may be both arousing and disturbing; it might in fact be disturbing partly because of the arousal, or of the possibility of arousal.
5.5.2006 11:22am
Eric Rasmusen1 (mail):
The commenter who mentioned torts is on the right track, I think. For simplicity, we use observable things and averages as a guide to damage. The average person's damage from being sexually touched is X, and we require negligence or intent for that touching to be unlawful. The average person's damage from being tapped on the shoulder is Y, which is different from X. It should be ignored that the person claims to be unusually offended, unless the person has objective evidence of his feelings.

There's another interesting angle to a sexual touching tort. It may be embarassing for the victim to have evidence presented on his exact damage. This would be true both of the defense's evidence ("he is a male prostitute and so doesn't really care") or the plaintiff's ("The touching gave me perverse pleasure, and so was especially offensive") This is an argument for using a general, coarse (not apt?), rule rather than a situation-specific one.
5.5.2006 11:29am
Mr. Chapman's post above, through typographical inadvertence, may have hit on a useful shorthand. Instead of writing "breasts and genitals," we can simply write "gentitals."
5.5.2006 11:32am
Houston Lawyer:
Unwanted sexual touching is a species of sexual assault. It is surely not limited to the "gentitals", but would also include the buttocks. Traditionally, any husband, boyfriend or bystander would be entitled to beat the snot out of any male who he witnessed so assaulting any female. The possible sexual arousal of the victim is not an issue.

With regard to other touching, I believe that common sense just says "get over it".
5.5.2006 11:59am
Anderson (mail) (www):
a reasonable sense of personal dignity

Well, the Restatement's libertarian cred is shot!
5.5.2006 12:45pm
Tony (mail):
I suspect the division between appropriate and inappropriate touching is not so pronounced in spite of being arbitrary; it's pronounced because it's arbitrary. Other cultures find casual genital touching between men, for instance, to be normal and proper.

It is just as plausible that one might tattoo a green dot and a red dot side by side on one's forehead, and declare that touching the green dot is friendly, while touching the red dot is an act of aggression. If such a practice became widespread and traditionalized, it would soon become "natural" and "obvious". And I'm sure that certain aggressive people would touch the red dot as an act of aggression; there might even emerge a genre of red-dot pornography, or a counterculture of people who embrace the red dot and angrily declare the taboo to be obsolete.

It's just a line-in-the-sand thing, the establishment of an arbitrary limit in order to confirm social conformance, and to test respect for limits in general. That the particular limit being violated is of no material consequence doesn't matter. It's a way of communicating attitudes towards limits in general, with an eye to limits that do matter.
5.5.2006 1:03pm
Clayton E. Cramer (mail) (www):
Jack Brennen writes:

On the topic of people with kids I'm surprised that we haven't heard from any parents who find the social norm against breastfeeding in public to be a major problem. Why else other than "yuck" in this limited case of public nudity?
I wasn't aware that there was a social norm against breastfeeding in public. There is a social norm against being unnecessarily indiscrete (taking off your shirt, for example). Now, there are terribly prudish places that have rules against this Victoria's Secret store. (Breasts are only for prurient purposes, to Victoria's Secret--not for feeding babies.) But generally, most people manage to make a distinction between breastfeeding (something done for the benefit of child and mother) and exposing of breasts as a form of sexual exhibitionism.
5.5.2006 1:03pm
Hattio (mail):
I think Houston Lawyer brings up a good point. One of the reasons intentional non-consensual sexual touching is punished more severely is to prevent violence and more societal problems and crimes, from people taking the issue into their own hands. Even if someone makes it clear they don't want a hug, they're not likely to punch someone who hugs them. Go out grabbing breasts, and see how quickly you get hit....even with the greater punishment in place.

I also have a question, but first I have to set out an assumption that may not be correct. I am assuming that most women would find an unintentional sexual touching (for example on the breast) more disturbing than an intentional but unwanted non-sexual touching (for example a pat on the back). If our concern for harm caused was truly paramount, wouldn't it make more sense to punish the unintentional sexual touching worse? I realize the lack of intent means the person lacks mens rea, but it also seems that punishing it worse would create a higher incentive in others to be more careful.

BTW, I don't know whether men would find an unintentional sexual touching more offensive, mostly because it's pretty difficult to unintentionally touch the crotch unless its something like a knee in a basketball game. Men generally object to that because it hurts, not because it was a sexual touching.
5.5.2006 1:04pm
Clayton E. Cramer (mail) (www):
Juanita Broderick writes:

What is most puzzling is that Prof. Volokh and a few commenters see a need to dissect the rationale for differentiating between touchings of the back and of the genitals, as if the rationale mattered.
It is necessary in order to come up with a theory that allows some forms of inappropriate public sexual behavior to become constitutionally protected, while other forms can remain criminal matters.
5.5.2006 1:06pm
Clayton E. Cramer (mail) (www):
Hattio writes:

BTW, I don't know whether men would find an unintentional sexual touching more offensive, mostly because it's pretty difficult to unintentionally touch the crotch unless its something like a knee in a basketball game. Men generally object to that because it hurts, not because it was a sexual touching.
Adding to the complexity is that unwanted sexual touching of men is more likely to be done by men, not women. But most men are just nasty homophobes, and I'm sure that the Supreme Court, if some people get their way, will make unwanted sexual contact into a form of "expressive conduct" protected by the First Amendment.
5.5.2006 1:08pm
Neal R. (mail):
EV: It may be both arousing and disturbing; it might in fact be disturbing partly because of the arousal, or of the possibility of arousal.

Maybe I'm just confused by what you mean by "arousal." Do you mean that unwanted touching of the breasts or genitals may incite sexual longing in the person who is touched, or do you just mean that the touching may stimulate nerve endings and cause some sort of immediate pysiological reaction in the vicitm? I find the former intuitively implausible, but then I'm not a doctor or psychiatrist. (For all I know, the distinction I'm drawing may not be medically recognized.)

If you mean the latter, I could imagine that the person who experienced the involuntary physical response might, as a result, experience shame or guilt, confusing the involuntary response for sexual longing. This might explain why the law would punish the groper more severely than one who engaged in an unwanted but non-sexual touching -- groping is an aggravated battery, because it is likely to create shame or guilt in the victim.
5.5.2006 1:12pm
honeybadger (mail):
"BTW, I don't know whether men would find an unintentional sexual touching more offensive, mostly because it's pretty difficult to unintentionally touch the crotch unless its something like a knee in a basketball game."

Sometimes I wonder how much the average man would really mind an intentional one. If an extremely attractive woman came up to the average guy, commandingly looked him in the eye, smiled winsomely, and put her hand on his business, she'd probably get a favorable response as often as not.

Maybe I'm too cynical... in the past month, I've caught two men masturbating in the New York subway at the sight of me: one through his pants while seated in the train and one "au naturel" peeking around a pillar a deserted platform. (In case you were wondering, both occasions I was wearing a plain black turtleneck with a simple black skirt in one case and black pants and riding boots in the other; minimal makeup with my blonde hair pulled back in a chignon. Hardly "asking for it"!) It's definitely not the first time it happened to me, either.

I complained to an attractive friend, who cynically replied: "How long have you been in New York, honey? Seems like it happens to me every week."

For good-looking women, it seems that witnessing public masturbation is just a routine part of life in Manhattan. The most recent time it happened, I just ignored it and went back to reading my book: no big deal since he obviously wasnt going to do anything.
5.5.2006 2:58pm
American Psikhushka (mail):
Of course so-called socially normal touching can be abused too. If a blowhard law student that is known to have a problem with you slaps you on the back hard enough to knock the wind out of you the intention is clear - to provoke, bait, harass, intimidate, menace, etc.

So this would therefore cross into assault. And it could also be fit into a pattern of other crimes/torts for various evidentiary reasons - say harassment, stalking, threats, libel, slander, defamation, invasion of privacy, etc.
5.5.2006 3:06pm
Actually, if we add the buttocks to the list of proscribed areas--as Houston Lawyer did earlier--then there is a tremendous amount of gentital touching; see any major team sporting event. Pats on the fanny are received constantly, yet we never seem to protest them as inappropriate sexual touching. However, a gentle stroking of the arm or neck, which is not gentital contact, could (would) be construed as inappropriate, and in some contexts, sexual harassment.

I think that the upshot of all of this verbiage is; sex still matters, and matters of sex will always be placed in a different light (see any post on gay marriage!).
5.5.2006 5:35pm
Anders Widebrant (mail) (www):
The natural reaction (in as much as there is such a thing) to being groped is fear and repulsion, not sexual arousal. It is not disturbing because it is potentially arousing. It is disturbing because a) primitively, it is an assault on your most sensitive and valuable body parts and b) socially, it is taboo and a prelude to full-on rape.
5.6.2006 12:50pm

The harm in unwanted sexual touching is not involuntary sexual arousal of the person being touched, but rather the fact that the toucher is using the person's body sexually without his or her consent.

Couldn't you extend this reasoning to public sex? I would suggest the majority of people having sex in public are doing it for the increased sexual satisfaction it provides them. Most of this derives from thoughts of how others will react -- these reactions adding risk to the encounter. Isn't this using the other person's body sexually without his or her consent? You are deriving sexual satisfaction, and possibly feelings of domination or control, from how others are responding physically and mentally. The responses from others don't have to be sexual; the consensus in this thread is unwanted genital touching doesn't cause sexual arousal as a primary response, but it is still deemed wrong.

I am excluding people who are attempting to discreetly have sex in public from the above; for example, teenagers hidden in the bushes at night because it is the only venue available to them. They are in a situation they would rather avoid rather than one where they are hoping to use third parties sexually.
5.6.2006 2:29pm
Gus Centrone (mail) (www):
The problem with involuntary touching, sir, is the lack of consent. Certain batteries (such as hugs) are not criminal because there is an implication that a reasonable person would consent to such a hug, even if unexpected or disconcerting. However, a person who makes it clear to the would-be hugger that she does not want to be hugged, DOES in fact have the ability to press charges for it. Plus, that person can sue for tortious battery. Whereas, with involuntary touching someone sexually, a reasonable person would not impliedly give consent to such an act. If the person who is touched makes it clear they would like to be touched, no crime has taken place and no civil suit would be valid. The reasonableness test is based on how the majority of Americans would like to deal with each other on a daily basis. While your reasoning is sound, it removes from the equation cultural norms that we have decided for ourselves as a society.
5.6.2006 6:12pm
mythago (mail) (www):
it might in fact be disturbing partly because of the arousal, or of the possibility of arousal

Count me among the people who find this argument bizarre. The law doesn't distinguish between unwanted touches based the likelihood that they would be physically pleasurable. Caressing someone's rear end is not a lesser crime than goosing them hard enough to leave a bruise.
5.6.2006 7:20pm
You really ought to read Belle Waring's reaction, Eugene.
5.6.2006 8:23pm
Eugene, you really have to get out more.
5.6.2006 8:46pm
chicago dyke (mail) (www):
when a man who is not a friend tries to touch me, i make it more than clear what would happen were he to succeed. i'm "hot" enough to have had to ahem, "educate" not a few leering losers who think any female body is public property. not all of them have full use of their hands anymore.

i am in no way "turned on" by slobbering foot lickers (check out today's Steve Gilliard for the link), bun worshippers, or any other cutesy label men like to give themselve as cover for their inability to be mature and control themselves. EV- so i take your mom is turned on when that homeless guy at the grocery store lunges a meth-stained, disease-ridden hand at her ass? does that make her nice and buttery in the nether regions? no? what's wrong with her then? is she frigid, or just a lesbian?

this is the most ridiculous post you've ever put up, and only reaffirms my own militant brand of feminism. remember: some of us Wimmin own guns and are Marine-certified martial arts experts. indulge your purient fantasies on our bodies at your own risk.
5.6.2006 11:18pm
devin chalmers (mail):
One of my favorite bits on the Ali G show was Borat. His schtick was that he was from Uzbekistan, in addition to being a terrible asshole and tremendously socially inept. The gag was that people would excuse all this because he sold it as a foreign custom. (Hilarious!)

Anyway, he used to greet men (especially southern rural-type men) by sort of weighing their scrotum/testicle-area (i.e. 'balls') in his hand. Often, he'd get the men to reciprocate the greeting. The expression on their faces in both cases was absolutely priceless.

That is all.
5.7.2006 12:53am
AJL (mail):
You leap from distinction (unwanted touching viewed proper vs. not viewed as proper) to explanation—an explanation based only on one dimension of feeling—without considering the many other plausible explanations.

Yes, Eugene, genitals can be aroused. Mouths can also ingest food—but that is not the same experience of feeling as a punch in the pie-eater.

Genitals are experienced as zones of private contact; thus, intrusive contact is experienced as anxiety-provoking. The link between anxiety and social prohibition is well-known—as is the inverse correlation between anxiety and sexual arousal.

Unwanted genital touching is distinguished from other forms of unwanted touching by the distinct social prohibitions and zone of psychological privacy maintained around these.
5.7.2006 11:48am
Seth Edenbaum (mail) (www):
So we consider it a crime to enter someone's house without permission in order to protect us from the risk that we might actully want them to be there.

5.7.2006 5:55pm