The Volokh Conspiracy

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.

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.

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.

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.

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.

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!"

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?

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.

and

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.

That Frist add on the right makes me feel like someone is manhandling my genitals.

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.

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".

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.

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.

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.

"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.

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!).

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.

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.

Eugene, you really have to get out more.

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.

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.

interesting.