Now, I post this with a heavy heart, because the truth is, that despite any previous complaints about puppies, I actually regard Eugene Volokh as an intelligent, thoughtful person with whom I would love to have a beer or two. (In fact, we have friends in common.) So, I was basically floored by this:
The premise of this post is that laws which prohibit unwanted sexual touching are based on the fear of involuntary sexual arousal on the part of the victim. And I’m sorry to say, that’s just crazy talk.
Say, on the other hand [vs physical contact ordinarily regarded as non-sexual, but which may be unwanted, such as shoulder-patting], 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.
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.???
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did I say what the fuck? coz I was totally thinking that shit.
That entire thread is really fucking creepy. Jesus F. Christ. And I love how this one thinks the male equivalent is when “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,” and then follows it up by blithely explaining that the men jerking off on the subway “obviously” aren’t going to “do anything.”
Here I think we see where being a “progidy” can completely warp your vision of the entire world.
You can still have the beer, but for goodness’ sake, don’t give him a hug.
Seriously, though, I too generally enjoy reading about his thinking, but here he’s just gotten totally lost in his own head. THis was one where he needed to ask someone, “could this idea possibly have any real-world plausibility,” and be told firmly, no.
Discounting for the generally polite tone over, there, though, the commenters seem fairly appalled by his point. Albeit there are a couple of weirdos like the one I.L. points out (who, even odder, purports to be a woman).
yikes. any close look at the phenomenon will tell you that sexual harassment is about power and domination rather than the intention to arouse the target. i find that men can best appreciate this point when they think about cases of male-on-male harassment.
if i’m arguing with a male lawyer about this, i’d cite the example of joseph oncale, the plaintiff in the supreme court case establishing same-sex harassment as gender discrimination(Oncale v. Sundowner Offshore Services, 523 U.S. 75 [1998]). oncale was sexually attacked at work on multiple occasions, including an assault while showering. i won’t repeat the ugly facts of the case (see the note on page 67 if you are interested), but it was clear that his coworkers intended to hurt and humiliate him. as in the case with the vast majority of male-on-female harassment, there was zero intention to arouse and no danger of that happening.
Volokh completely misses the point. He’s looking at the problem, I might add, from an exclusively consequentialist perspective – the unfounded belief that what makes the touching unacceptable is the effect it has on the person touched, not the toucher’s intention. From the perspective of English law (which is all I can vouch for), the ‘unwanted sexual arousal’ argument would fail due to drawing the distinction between acceptable and unaccepable at the wrong place, a result that would account for Volokh’s perplexity.
The kinds of touching that are accepted as part of everyday life, and to which consent is implied by law (so that they are not batteries if no harm ensues) includes more than merely being pushed around on the Tube or patting someone on the shoulder to get their attention. Accidental touching, neither intentional nor subjectively reckless, even of ‘sexual areas’ of the other person’s body will not constitute battery. Sexual assault under the SOA 2003 will, also, have to be an intentional touching, AND of a sexual manner, which, unless the toucher actually gropes someone, will not be the case. Accidentally rubbing one’s shoulder against a woman’s breast will therefore be neither battery nor sexual assault.
On the other hand, just to see that it’s the (constructive) intention of the toucher that is the most operative factor, intentionally pulling a person’s pants down may constitute sexual assault.
If Volokh wants to try to debunk common-law battery or sexual assault requirements, it might require a more sophisticated attack of its deontological basis rather than merely stating that the present law is incomprehensible when viewed from a consequentialist perspective.
Um, this is the guy who once emitted a “thought experiment” in the form of “What if the theocrats are right, and gays really do ‘recruit’?” Correct? And I’m supposed to be surprised that he’s coughed up another gob of ugliness in the service of contrarianism, or of boldly going where no thinker has dared to go before, or something?
What’s really depressing/infuriating is that this is what passes for courageous thinking for so many people these days: What if the shared values that we take for granted are just so many P.C. liberal pieties that have rammed down our throats willy-nilly? Is torture really such a bad thing if the people being tortured are super-mega-evil? Was slavery really so bad? Do gay people really deserve equality under the law? What if straight white guys tend to own and run most of the world because they deserve to? Follow that path long enough and look where we end up: Face it honey, the only thing you’ve got against “sexual harassment” is that you might—God forbid—actually enjoy it!
“Stupid” is one word for it, Belle, but I don’t think it does it justice.
Belle, you are usually right, but on this issue, you are completely wrong.
It is the thoughtful and intelligent bits in Volokh that are the aberrations. Deep down, in his heart, he is someone who has a very, very nasty psychological relationship with power, and it has come out in his writing far too often to be unintentional. I would no more sit down and have a beer with him than I would with various other charming and well-educated people who got hung by the Nuremberg Tribunals. Yech.
but he seems so normal! I also left out the two other times where dudes have full-on jerked off next to me on public transit. but that’s probably because it’s making me all hott right now.
Is this the guy who wants to turture criminals for fun?
I don’t get this whole ‘Eugene Volokh is a reasonably guy’ schtick that floats about on teh internets. Every couple of months here or on other blogs we get a ‘Why is Eugene Volokh posting this demented nonsense when he seems like such a reasonable guy?’ post.
Maybe EV can combine his interests and ask whether one of the problems with torture is the likelihood that the torturer is deriving some sort of sexual arousal from touching …
Belle, your personal examples seem to go beyond the kind of cases that Eugene is talking about. There would at least seem to be some gap between a pat on the ass and rape. You will likely think this says something about me but I fail to see why Eugene’s claim is so egregious. No one seems to have a problem thinking the second disjunct [other person is deriving some sort of sexual] could be part of the problem, so it makes sense to investigate the first. Eugene’s first claim is modal, it may be the case that someone is disturbed for these reasons. Is your claim then that there is never the chance that someone is disturbed because they experienced involuntarily sexually aroused, or the possibility of such. To be sure that seems like a rather strong claim.
Even taking this on EV’s own terms, it’s sloppy thinking. There are other touches than a shoulder pat and a genital grope, and many of them are unacceptable intrusions. If I act like a shoulder pat is completely unacceptable, then I’m probably going to be taken as testy. But Eugene cannot put his hand on my stomach. He cannot reach down and hold my shoe in his hand. And he certainly cannot grasp my face. None of these is sexually arousing, but they are, in our culture, inappropriate touching that I’m not going to put up with. The law comes in at sexual groping because that occurs on a specific, historical axis of power. And that’s the connection with Belle’s experiences.
Sigh. My own version, as someone who has seen his progression over ten years off and on, it’s that he’s the perfect example of “Lie down with dogs, get up with fleas”. He’s a nice guy, but he runs with a very bad crowd (wingnuts and Libertarians). So his intellectual prowess ends up being used in the service of some extremely fever-swamp ravings. You can see the darker aspects of the right-wing mind bubbling up through him – I think uncle kvetch’s comment (#7) catalogs it well.
Matthew,
(getting to be a lot of Matts on this site- just remember, in the end, there can be only one). I’m sure there are a tiny number of people, women even, who are both arroused by being groped unexpectedly be some stranger and who then are disturbed by this unwanted arrousal. The world is a big place and full of strange stuff. But, Belle doesn’t need there to be no such people, only for them to be vanishingly rare. I hope we can agree that they are vanishingly rare. If they are rare, then it’s quite unlikely that the law is directed against that situation, or has anything to do with it at all. If so, that makes volokh’s speculation totally crazy and more than a bit offensive.
No one seems to have a problem thinking the second disjunct [other person is deriving some sort of sexual] could be part of the problem, so it makes sense to investigate the first
Hmmm … what about “I think you said that either because you are a closet paedophile Nazi or a friend of Volokh”. The two halves of a disjunction have to be logically independent from one another; that’s why they’re a disjunct.
Matt, my theory is that EV is like many other right-wingers – he successfully uses the claim of ‘libertarianism’ to conceal a deep and nasty right-wing streak.
Uncle Kvetch, one of my pet peeves is the distinction between ‘moral courage’ and ‘contrarianism’. Moral courage is where somebody will stand up for what they believe in, even at a price. ‘Contrarianism’, OTOH, is where somebody takes a contrary stand which isn’t brave, for no really good reason, and publicly pats themselves on the back for being different. Which ‘difference’, I’ve noticed, generally does not extend to bucking the powers that be. It’s far more likely to be pleasing to the powers that be.
I’m pretty sure that the post you object to makes more sense in the context of the eight other posts on the subject of why we do or do not allow sex and/or nudity in public places.
They have nested them in a single thread here. In that context, the question of unwanted sexual arousal had already come up, so exploring it doesn’t seem as creepy.
Anyone seen the Argentine movie “holy girl”? i remember it being highly praised by several critics though it really wasn’t that great…my theory is volokh saw the movie since in it, the object of the touching does in fact get aroused…also, overall, i dont think that this touching/arousal is that strange an occurrence given the depravities humanity voluntarily goes through but then on the other hand, I highly doubt it factored into any legal basis for the laws he’s talking about…
I don’t normally read the guy, but this one (and the torture thing as well) doesn’t sound like ‘contrarianism’ as much as some form of ‘shockjockism’. Contrarianism can go in either direction, while this guy seems to be trying to be purposely hideous.
Why does this need to become so personal? Is Volokh’s argument wrong and stupid? Yes. Is Volokh stupid and evil? No.
Personally, I think he’s getting caught up in a common trap for those who live (or legislate) by Mill’s harm principle: trying to find some legitimate way to distinguish being “merely offended” from real “harm”. I doubt that this can actually be done, and trying to can – as Eugene demonstrates here – lead you some pretty weird places.
I too have been very bothered by the personal vitriol in these comments. I read the post on VC yseterday (and the related posts) and found this particular one confusing and maybe just confused.
That doesn’t suggest the need for the personal attacks we have here.
#21 – “Is Volokh stupid and evil? No.”
Agreed. Does Volokh at times say some stupid and insensitive things? Yes.
I suppose the question you’re raising is how much that deserves comment as a phenomena in itself.
I think the personal vitriol is based on the fact that ideas have consequences.
There is something at the very least morally unsavory about arguing 1) that women object to groping because it really turns them on, or 2) that we ought to be torturing people. And that, in a country in which 1) women are regularly sexually assaulted and 2) our government is actually torturing people, expressing these ideas is more than simply morally unsavory. Someone like Eugene Volock who promotes these notions deserves to be personally criticized for doing so.
I don’t understand how the context of these posts (a larger discussion about public nudity and sexual harrassment) is in any way a mitigating factor. The problem with EV’s post is not what he’s talking about, but rather his conclusions about the topic.
That doesn’t suggest the need for the personal attacks we have here.
Well, if both the object and the perpetrator of a personal attack all get aroused, it can’t really be all that bad.
Is Volokh’s argument wrong and stupid? Yes. Is Volokh stupid and evil? No.
Well, my view is “yes”, and that in turn answers your question “Why does this need to become so personal?”. When someone constantly “ends up” in so many “weird places”, it is hard to avoid the conclusion that they keep ending up there because they like going there, rather like a vicar who keeps ending up in peepshows.
“Why does this need to become so personal?”
“I too have been very bothered by the personal vitriol in these comments.”
I’m not sure why there’s a sudden outburst of sensitivity for Eugene Volokh when people get mad at the stupid and outrageous things he says (“maybe it’d be cool if we tortured criminals to death,” “maybe victims of sexual assault kinda get off on getting sexually assaulted”) while there clearly isn’t a similar rush to defend Glenn Reynolds when people get mad at the stupid and outrageous things he says. Are not all shmibertarians created equal?
“The problem with EV’s post is not what he’s talking about, but rather his conclusions about the topic.”
Well, really, I think we’re all for aggressive explorations of ideas, and I don’t think that pursuing the implications of unsavory ideas is a morally a bad thing to do. Eugene’s intellectual crime here tho (and I do mean crime) is to omit context, and the important context here is the historical power relations associated with gender.
He tried to exempt the “touching” thing he explores from the embedded context by noting that tapping someone on the shoulder to get their attention is not illegal. But he neglected the plain fact that many people would find unsolicited touching offensive if the toucher didn’t already have a positive relationship with the touchee.
And yeah, I’ve been on the 2-3 line into Brooklyn on a hot day at 5pm.
You know, once upon a time long ago, I was a slender and apparently adorably cute young man (no longer, I’m afraid—nowadays I’m just geezerly), and I also tended to hang out in the rougher parts of Seattle. I had both older men and women make ‘intentional contact’ with me, and no, it was never arousing…and jebus, I was 17. Can you imagine how difficult it is for something to not be arousing to a 17 year old male? Even encounters with attractive members of the opposite sex are frightening, not arousing, when they lack the expected context of consensual social interaction.
Where do these guys get their opinions on sexual behavior? It most assuredly is not purely autonomic.
What a maroon. The problem with unwanted sexual touching is that it is UNWANTED. As in, “I don’t care whether you want this or not, I’m doing it anyway.”
Maybe I completely misunderstood EV’s post, but I didn’t think that he was saying that genital touching is acceptable. (And, just as a side note, the only place where he mentioned women was in his first definition of unwanted contact; the post was about unwanted touching in general.) His argument seemed to me to be a “where is the line?” argument. We know that certain forms of touching are OK, such as tapping someone on the shoulder. We know that some other forms of touching are not, like beating someone up. The question is, where is the line between these, and why is the line there?
EV does not even attempt to argue that some forms of touching on the “bad side” of the line are acceptable; he merely tries to deduce why the line is where it is. As randy posted, it would be very strange (and not socially acceptable) to come up to someone and grab their face (or their shoe). However, if someone did (and then left) you would likely find it very weird, but not as disturbing as if someone grabbed your genitals. I think that EV was on completely the wrong track with this post, but the post in itself does not seem to me to deserve the kinds of comments it is getting.
Volokh should not be read, ever, by anyone.
“Lie down with dogs, get up with fleas”
I’ve seen his progression for 15 years at least (I wouldn’t say I’ve watched it closely) and I agree. There certainly was something very nice about him before he got in with the dogs.
Incidentally the 10th hit for him on uk.yahoo is “Iran’s desert vampire executed”—have you guys been Googlebombing?
daniel/#26 When someone constantly “ends up” in so many “weird places”, it is hard to avoid the conclusion that they keep ending up there because they like going there…
Or, because they run with a crowd that goes there.
Look, wingnuttia’s a very congenial place for the white male intellectual. It offers a lot of support in terms of money, and audience, and prominence. As well as validation of fortunate circumstances. Swim in the liberal stream, and all the oppressions of the world prompt examination of power and privilege. As well as some very difficult social politics for a white male intellectual to navigate.
I think Volokh gets sympathy because he is genuinely thoughtful. The tragedy is that he spends too much time thinking about how to rationalize the outright psychotic worldview of some of his associates.
Someone has been reading to much John Norman, mmhm?
Ah, those libertarians. 13 one day, 13 for ever.
The harmful effects of introducing personal vitriol into a discussion are amply illustrated by this thread. The conversation has been dominated by discussion of Eugene Volokh, and what kind of person he is. Meanwhile, the much more important discussion of what underpins laws and social attitudes surrounding unwanted touching, unwanted sexual touching, exhibitionism and public masturbation has been lost or submerged.
Belle’s personal anecdotes, which she courageously shared, suggest at least two possibilities: (i) the conduct in question is regulated because it gebnerally carries the potential for violence, and (ii) it is regulated because those who are the recipients of unwanted sexual touching, or are compelled to view public masturbation very often find these actions disgusting or in other ways painful, and deserve to be protected from such pain.
I think both of these factors play a large role in our social practices. Number (ii), however, raises a lot of interesting questions about our reactions to sexual activity, especially in cases where there is no touching involved.
In exploring these attitudes, one might compare differing attitudes toward different kinds of sexual activity one might see performed in a confined space like a subway car:
1. Heterosexual intercourse,
2. Homosexual intercourse,
3. “Private” masturbation, where no one else on the train is clearly an object of the masturbatory fantsy,
4. Exposeure or masturbation where some other person on the train is apparently the intended object of the display or the masturbatory fantasy.
My guess is that for people who find themselves the object of type 4 activity, there may be little difference – on the aspect of disgust – between actually being touched and simply being leered at as the activity goes on. But the touching would certainly add an extra element of fear related to the invasion of personal space and the anticipation of physical violence.
I suspect 3) and 4) would be functionally equivalent.
On another point, upthread: “Contrarians” have had it coming for a long time. There are times when deliberately odd opinions are useful, for example in a scenario planning exercise when the whole point is to think about what happens if the Chinese seize this moment to invade Dublin.
But most users of the term mean by it “saying any bizarre shit I dragged out of my arse and not having to defend it logically because it’s contrarian”.
It’s very significant that one of the first people to self-identify as a contrarian was Hitchens in his Clinton-bashing period.
“Meanwhile, the much more important discussion of what underpins laws and social attitudes surrounding unwanted touching, unwanted sexual touching, exhibitionism and public masturbation has been lost or submerged.”
And you proceed to commit the same error of omission that Volokh did. In keeping with your first sentence, I suppose we pitch you in the bin with him.
Question: why must fear, disgust, and physical violence be our sole objects of contemplation, while the containing context of the historically observed outcomes of social power relationships, not? Y’all are not coming off as very reflective, not least because your simple theories elide more complex interactions of dominance and submission between classes, races, and of course, sexes. (Throw in all the other flavors of sexual orientation, too)
Of course, y’all are just a bunch of privileged white boyz, right? (I’m making a joke! really! Of course you’re not!)
I think the more important discussion is that EV is stupid and evil. The touching stuff, at least as EV puts the question, answers itself.
Well, I guess the first one answers itself too, at least for me, but for some people it seems like an open question. Belle’s post is not a comment on touching, it’s a graceful note asking what the fuck is wrong with Eugene Volokh.
I think the more important discussion is that EV is stupid and evil.
I can’t decide whether ‘EV is stupid and evil’ is more important or ‘public masturbation is disgusting and scary’. Help me.
Don’t touch EV. He’s evil!
Did anybody read the comments? Volokh’s idea got schooled in the very first one. That pretty much covers it.
Er, the validity of it. As to why he might want to discuss it, nope, very much open. Personally, I’d say it was a very Larry Summers sort of thought experiment, and worth about as much as that and a lof of the thought experiments being discussed all week long—not much value beyond intellectual exercise for the sake of being facile with the tools, as opposed to the content, of discussion.
For all the world it looks like one of those half-assed ideas you drunkenly toss out, and your drinking buddies would just stare at you indicating how stupid it is.
Feature request: the ability to edit typos…
HAHAHAHHAHA
Finally you have figured out that Volokh is a moral moron, or at best nearly autistic.
He lacks the fundamental requirement for a legal mind: judgment of human character.
Volokh is amoral and confuses his own solipsism with reality (which is creepy). That seem to be a huge failing among certain types of academics these days, particularlly in the US. There are better thinkers in the world who can be trusted not to waste our time while we try to figure out that they’re just mistaken, not exhibiting some personality disorder.
Next time you see Gene, give him a friendly goose.
This is jaw droppingly simple. We live together in a civil community by establishing a mutual social compact. Part of that compact says: don’t violate my person without my consent. It doesn’t matter why I object to this violation—it’s my sole perogative, and EV sounds like some sick creepy date arguing that if you don’t want him to touch you, it must be because you are afraid you might like it. No. Generally, before an exchange of intimicy, a number of layers of social protocols have been successfully navigated, and both partners have arrived at an agreement by mutual consent. Frank Zappa was right—stupidity IS more common than hydrogen. EV, get some charm, learn the rules of courtship—then, get another face.
Shameless ad hominem.
To me, unwanted touching is a bodily integrity or security of the person issue. It’s my body, and since I don’t consent, you’re not authorised to use it for whatever purpose you find groping it gives you, whether that’s a power trip or you’re just getting your rocks off.
Has anyone here read what EV had to said in the quotation above? Look at this sentence:
“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.”
Note, in particular, the phrase “or is deriving some sort of sexual arousal from touching you.” In other words, he is suggesting that touching by a stranger is offensive if the perpetrator gets off on it. That takes care of rapist and the masturbater on the bus.
That he spends more time on the possibility that the victim’s arousal contributes toward the offensiveness of sexual contact is hardly surprising since that’s the more controversial part of his proposal. I think he may be on to something ( though I confess I’m going only on the quotations here). Here’s an example: a woman is very attracted to a man and wants to become more intimate with him. While in public, the man puts his hands on her breasts. Would she find that offensive? I think so, even though she might have welcomed it in a different context.
(I think EV should probably use the phrase “unrequested contact” in these types of situations rather than “unwanted.”)
Furthermore, even if the woman did not object to the man’s conduct, there’s a good chance that onlookers would—in other words, there’s a possibility that the potential arousal of the recipient can play a role in what’s considered offensive by society. And that’s what we’re really concerned with here—after all, the law doesn’t give much comfort to those who are offended by common actions like a pat on the back; it punishes things thought to be offensive by society or at least a large segment of society.
Granted, I’ve had to make some substitions here— “unrequested” instead of “unwanted” and “recipient” rather than “victim.” I suppose EV’s thinking could be as repellent as people here say, but I’d like to see more evidence before jumping to that conclusion.
Did EV have someone jerk off next to him on the metro and get angry because he felt aroused?
who goes around postulating on this shit and then taking themselves seriously enough to write about it?
I’m with the WTF reaction. I mean WTF?
The real WTF is for people who are still surprised that smart, articulate, nice middle class scumballs are scumballs. EV in a law school pleasantly wondering about the positive sides of torture, and some dumbass white trash prison guards shoving chemical lights. Ted Bundy versus Son of Sam.
But he was such a nice boy, so intelligent.
The problem with Volokh’s post is that it is a VERY typical male abuser’s fantasy, namely that the victim is getting off on being abused. Anyway, the idea that somehow laws about unwanted sexual touching were informed by a victim’s perspective (even one as skewed as that advanced here) is laughable. It’s fairly clear to anyone w/ a basic understanding of history that they were informed by a male conception of property ownership, i.e. don’t touch my woman, she’s mine to touch, not yours.
I wanted to add to my post above that the difficulty for EV’s theory is finding a situation in which the recipient of unwanted touching is aroused or could be aroused but not the one who does the touching. If the recipient is never in danger of arousal unless the actor has sexual intentions, then it makes no sense to have two categories instead of one.
That situation might arise if the recipient and actor come from different cultures or subcultures. The actor might do something—standing too close, giving a hello kiss—that the victim and her culture consider provocative and thus offensive. Again, it’s not too difficult to imagine a situation in which unwelcome behavior in one situation by a certain persom would nonetheless be welcome in another situation by the same person. One might see an attractive person on the bus and start fantasizing immediately about having sex with him or her. Yet if he or she began to live out your fantasy there and then on the bus, there’s a good change that the fantasizer or onlookers would be offended.
I know people might think I’m trivializing the problem of unwanted touching with these examples. I don’t think that’s the case. The really offensive conduct is arguably already covered by the first part of EV’s theory.
I’m sorry but Eugene Volokh is just a sick fuck. I can’t imagine why anyone who has read a representative sample of his writing would think otherwise. He has a strong streak of sadism that runs through everything he does. Reasonable, my ass. This really frosts the cake. A person can be “intelligent” and be a total creep at the same time. Move over John Derbyshire, Gene needs a spot on the Perv bench!
It sounds to me as if Volokh keeps getting a boner every time some Freddy Mercury looking dude grabs his dick, nonconsensually, on the subway and it’s pissing him off.
When I was about 9/10 a neighbor’s father pushed me to the floor and proceeded to pull my pants down and put his hand inside me.
Yeah. So according to this ass that should have aroused me? Or some other shit?
Glad I dont’ read his nonsense. Too many just don’t understand assault on females and why it is done. More to the points, on children and females.
Matthew,
(getting to be a lot of Matts on this site- just remember, in the end, there can be only one). I’m sure there are a tiny number of people, women even, who are both arroused by being groped unexpectedly be some stranger and who then are disturbed by this unwanted arrousal. The world is a big place and full of strange stuff. But, Belle doesn’t need there to be no such people, only for them to be vanishingly rare. I hope we can agree that they are vanishingly rare. If they are rare, then it’s quite unlikely that the law is directed against that situation, or has anything to do with it at all. If so, that makes volokh’s speculation totally crazy and more than a bit offensive.
Posted by Matt · May 6th, 2006 at 10:33 am
But Matt, don’t you get it?!
The mere existence of ONE mentally-effed-up woman who would think that way means that, in Volokh’s mind, laws against sexual harrassments are bad.
I’ll bet you dollars to doughnuts the dude has a full set of Gor novels in his bedroom.
Wow. Just wow. I too thought Volokh’s post was uncharacteristically poorly reasoned, and that Belle’s post was bang on, but the derangement and detachment from anything resembling reality in this comments thread is just breathtaking. It’s pretty funny to see stones about “psychotic worldviews” and “fever swamps” batted about, with no apparent irony, here.
or intentionally caresses your breasts (if you’re a woman)
a lot of het men feel other’s breasts in say the marines or other super-y-chromo locales. it’s a possession/dominance thing. ditto spanking. and it goes without saying that arousal doesn’t really enter into it. but this is a sort of unnecessary tell right here that eugene “further proof that law professors can be helpless morons” volokh hasn’t even tried categoric imperative in his analysis, which is where a moral person would start.
i also see a trend in rightist legal/sh thinking as far as trying to squeeze sexual ideas from the nineteensixties into the reasoning of sh law.
while you are astonished that even if there is any arousal (which there isn’t) it is as irrelevant as unintended profit in a mismanaged account, you miss the obvious advantage of this disgusting line of reasoning: geneyboy’s forcing the chicks to admit they might like it. high five! crush a beer can into yer forehead! light yer dick on fire to prove yer a man! yeah!
So, say, the Real objection to some random passerby sticking his hand down a hypothetical Mrs. V’s shirt at the mall is that secretly the hypothetical Mrs. V was just quivering for the sexual touch of a stranger and didn’t want to admit it?
A hypothetical teenaged V daughter would only pretend to want autonomy over her own use as an anonymous object for strangers because she’s desperate to hide her urge to have her experience of sex formed with someone so inadequate that they can’t quite satisfy their urges with a willing partner?
Ironically enough, this is pretty much the reasoning behind honor killings.
Good to see the man can find some common ground with the islamic world after all.
asg/#50: All the world is mad save me and thee, and even thee’s a little queer :-).
[Not in an unwanted sexual sense, of course]
The more I observe republicans and conservatives and their comments, the more it dawns on me that there’s been a retardation of emotional and/or psychic growth and they JUST DON’T GET LIFE!
One of the weirdest things about the current crisis in the US is how rehtuglicans have used class both to excite working class voters against “liberal elites” and to comprehensively disarm “liberal elites” themselves. Get real. EV is a self-clamed “libertarian” who “wonders” about whether torture is all bad and has not been able to muster much indignation about the Presidents lawyer telling the SC that habeus corpus is merely advisory. In other words, he is clearly an apologist and propagandist for fascism – and Belle is surprised by some other piggie opinion of his!
I read the first quoted paragraph as a wish that women (and men) were so naturally horny as to preclude the possibility of rape or sexual harassment.
Someone needs to have their library purged of novels by Anonymous.
Belle says: …the person feeling you up on the subway might be sexually gratifying himself at your expense without your permission…
If instead, someone thinks it is fun to touch your nose and say “Beep!”, and he does so without your permission, you might be irritated, but you probably wouldn’t try to get the person arrested. Why is there a separate category of sexual harrassment, as opposed to just ordinary harrassment?
I’m not trying to argue here, I’m just wondering out loud why sexuality makes such a difference.
Thanks, Belle.
I like the name: “Eugene Volokh”. Sounds cool.
“Volokh’s post was uncharacteristically poorly reasoned, and that Belle’s post was bang on, but the derangement and detachment from anything resembling reality in this comments thread is just breathtaking.”
Yup. That sums it up nicely.
Yup. That sums it up nicely.
Indeed. I mean, it’s one thing when self-styled conservatives say and do horrible things, but when self-styled liberals have the utter temerity to, like, talk about those things—I’m sorry, that’s just sick.
Kvetch is right, of course. I honestly don’t know how everyone can be surprised by yet another of Volovkh’s advancing bizarrely reactionary arguments. Surely, if not the fact that gay rights suddenly turned him into a puritain busybody, his celebration of the Iranian government’s torture-before-death after he found the idea of torture to gross to consider the Bush administration’s policies should have settled the issue? As Jim Henley noted long ago,“I’ve always considered his specialty to be showy moral handwringing on the way to siding with Power anyway. The further you get from standard Republican issues like guns and university speech codes, the more likely he is to arrive, with exquisite regret, at the conclusion that the State, particularly when helmed by George W. Bush, must have its way.”
Good lord, people are awfully fast to judge Eugene the man for a one-off blog posting. I have many disagreements with him myself, but that doesn’t reach to him being stupid and evil; just, in my view, wrong.
That said, I agree – the wrong here is not involuntary arousal – that’s obviously silly. The wrong is involuntary invasion with intent to subjugate.
If I accidentally touch a woman’s breast, that’s embarrassing, but in my view, should not be actionable. I think what Eugene is missing is that involuntary sexual contact is an assertion of power in a way that tapping on the shoulder for attention is not – acting on the notion that one may do what one wishes with another’s body without permission is a very offensive thing to do that has nothing to do with arousal. To some extent, straightforward physical violence would seem less offensive.
Oh, and Sethf: not all of us libertarians are nuts. Some of us are really nice, thoughtful people. Give us a try sometime.
David/ASG: “That sums it up nicely.” No, it doesn’t. One of the main reasons people are so upset is that EV’s post was not “uncharacteristically poorly reasoned.” The point is precisely that this is Yet Another Crazy Hack Non-Argument From EV. It is not deranged or detached from reality to become angry when someone over, and over, and over again spreads wrong-minded, emotionally-retarded craziness. It is galling, and quite “reasonably” so, when someone uses their position and reputation to advance crazy extremist arguments. Here, let me sum it up nicely: the things EV argues about and the way he argues about them are frequently wrong and need to be rebutted, forcefully. And the personality that he reveals through his writings is repulsive on a visceral level. That explains both why people are so upset, and why it’s necessarily “personal.” Emotional intelligence and moral sensitivity are not opposites of, or adjuncts to, logical and rhetorical reasoning. You need both if you’re going to make a positive contribution. And the published evidence, of which this is just another example, makes it clear that there’s something wrong with EV in that respect.
I was in law school years ago with Volokh.
A very, very, very bright guy.
My sense of him, however, is that he is also a man that lives completely in his head and is out of touch with down-to-earth, human reality that most of us take for granted.
That is the problem with many of these right-wingers/neocons . . . they are more in love with their ideas ABOUT reality than with reality itself. They live in fantasy worlds of their own mental conconctions, creations and speculations. Hence, dreams about invading the Middle-east and transforming all those areas into democracies.
EV’s a guy, and, in a gender neutral context (like those avant garde plays where the guys are cast as gals and vice versa, and the dialogue twists in new ways), or rather the gender reversed context, hey, that kinda stuff might happen to a guy! (Think woman masturbating herself on the subway, while rubbing up against her involuntary seatmate’s thigh).
I read the first quoted paragraph as a wish that women (and men) were so naturally horny as to preclude the possibility of rape or sexual harassment.
Someone needs to have their library purged of novels by Anonymous.
Also of novels by Robert Heinlein and Spider Robinson.
Question: why must fear, disgust, and physical violence be our sole objects of contemplation, while the containing context of the historically observed outcomes of social power relationships, not? Y’all are not coming off as very reflective, not least because your simple theories elide more complex interactions of dominance and submission between classes, races, and of course, sexes. (Throw in all the other flavors of sexual orientation, too)
Well, perhaps you’re right Russell – although I did mention the factor of sexual orientation. But an observation:
I believe most of the laws in question date from a period well before more recent concerns with challenging traditional power relationships based on race, class and sex. While these liberal goals may be a contributing factor in continued public support for the laws among some portion of the population, I doubt they are the dominant factor.
In particular, the power equation considerations seem to miss the most salient part of the general response to lewd displays, both from the public and the victims – the “eeewwwwww” factor. The first instinctive response is that the act was “gross”, “disguting”, “creepy” or “revolting” – as are the people performing the acts.
That is not to say that the many perpetrators of these acts are not motivated in large part by power considerations and class considerations. I take it that part of the sexual gratification they derive comes from transgressing racial and class boundaries – as well as legal boundaries – and that they are often driven by a sort of will toward the subordination of women of all classes. The fact that they sometimes choose a place like a subway car for the act must have something to do with the fact that they take pleasure in the fact that their victim is a sort of captive, and powerless to leave the scene.
On the other hand, I don’t think this sort of dominance behavior is the sole motivation. Some of the perpetrators, by contrast, seem to crave a situation in which they, themselves, are vulnerable.
And I doubt concern about the subordination of women was responsible for these laws being passed in the first place, or is responsible for the bulk of the continued support they enjoy, since a good part of that support comes from traditionalists on the right, not notable for their hostility to the subordination of women.
“The harmful effects of introducing personal vitriol into a discussion are amply illustrated by this thread. The conversation has been dominated by discussion of Eugene Volokh, and what kind of person he is. Meanwhile, the much more important discussion of what underpins laws ”
Oh, not this one again. “Stop talking about the weird-ass opinion that was the point of this thread! Instead, I insist that you pretend that this opinion deserves consideration as if it were a rational one.”
Eugune Volokh is the same guy who wrote the “what if gays are really recruiting?” and “boy, I think we should torture more” and a variety of other batshit crazy wingnut posts. The only reason that people are surprised each time that he writes something insane is because of lowered expectations for conservatives—any one of them who does not immediately seem like a wingnut is admired by people who are scared by the thought that all contemporary conservatives are wingnuts. Remember Tacitus / Josh Trevino, for instance? At one time, every liberal blogger linked to him. It took a long time for people to realize that reasonably polite, upper-middle-class, educated wingnuttery is stil wingnuttery.
65: Racial boundaries? What?!
Oh, not this one again. “Stop talking about the weird-ass opinion that was the point of this thread! Instead, I insist that you pretend that this opinion deserves consideration as if it were a rational one.”
I didn’t at all say that Volokh’s opinion deserved to be taken seriously. What I do believe is that the major issue raised by his post, and by Belle’s discussion of it, deserves to be taken seriously – even if Volokh’s own opinion on that issue is false, or ridiclous, or crazy or whatever.
As Belle described it, “the premise of this [Volokh’s] post is that laws which prohibit unwanted sexual touching are based on the fear of involuntary sexual arousal on the part of the victim.” Belle rejects that claim very strenuously – and quite properly in my view. That naturally raises the question: On what are the laws which prohibit unwanted sexual touching based?
Belle made some comments that were suggestive of an alternative account, but in my view no distinct alternative was clearly articulated. It seemed to me that this is a topic worth discussing.
But instead, the discussion quickly degenerated into a fairly typical blogospheric lefty-righty food foot, with its typical obsessions with individuals and their personalities. Since, it seems to me, the issue of sex crimes and the motivations for different kinds of sex crime laws is a much more important and interesting topic than whether, and to what degree, Eugene Volokh is an asshole or an ignoramus or a crazy wingnut, I think this is unfortunate.
I also think it is a generally bad practice, when faced with a misguided or defective theory on some topic, coming from the right, to leave the field in a cloud of ad hominem smoke and dust without putting up some alternative theory or theories as alternatives to the right wing account. The problem is that eventually all that smoke and dust clears, and the other side is left with at least a theory – deficient though it may be – and no contrary theory to compete with it for the minds of readers.
67: 65: Racial boundaries? What?!
Surely it is not controversial that our society still does much to reinforce various kinds of ethnic and racial boundaries, and that there are people who derive sexual gratification from crossing those boundaries. Aren’t there entire species of pornography that are devoted to interracial and interethnic sex?
I’d have thought it was fairly plain that sexual harassment was an especially egregious example of the violation of personal space. As a libertarian, I am sure Volokh has no problem understanding, for instance, the offense given in the invasion of someone’s home. How much greater, then, is the offense given in the invasion of one’s body! And sexual boundaries are especially significant bodily boundaries.
I wonder what Volokh’s childhood was like?
I’m with Belle. WTF? This is not a thought exercise, it’s mental masturbation. It’s a wet dream disguised as intellectual discourse. There’s something utterly sad about pretending it’s some kind of deep legal reasoning. I think it speaks more of some deep repressed sexual conflict than legal or sociological inquiry.
Perhaps Volokh should consider this thought exercise. If he feels like sticking his hand down my pants to test his theory, I’ll have to test my theory of involuntary sexual arousal by trying to rip his testicles off. I wonder if he would object to that? He might only find it objectionable because it would possibly arouse him. I mean, how different is that than a tap on the shoulder? Feh.
“And I doubt concern about the subordination of women was responsible for these laws being passed in the first place” (65)
No, originally it was about violating the property of the father/husband/brother. Property that had monetary and honor value was harmed, without relevant consent. Whose consent matters has changed, the idea of violating bodies has expanded, but not changed. Law professors usually know that. Next point?
Dan / #68 – I think you’re unjustly dismissing the sociological question as improper in itself. His post also naturally raises the question “Why does he write such off-the-wall stuff? (and what’s the social system which rewards it?)”. Of course the blog sociology question is not the moral philosophy question. But there’s interest in the sociology as well.
Dan K.: I would like to jump in and opine that you make a really good point here. I would take exception, though, on two grounds. First, while I believe you’re right that thoughtless left-right foodfighting is unproductive, I would argue that it essentially doesn’t matter if you don’t have counterarguments to many of EV’s specific points because, first, they’re not actually “Right” arguments at all, and second, even if we were to assume that “The Right” as such actually existed, and that “they” hold opinions as absurd and offensive as EV’s, reacting with dismissive scorn and contempt is perfectly appropriate. The problem with taking such arguments seriously is that it in some sense validates them. I’m not going to argue with a nutjob on the subway, and I’m not going to take seriously some crackpot non-theory of personal relations that, so far as I can tell, has been raised solely for pathological reasons. What can you say to someone who pretends not to understand what consent means? It’s not an interesting hypothetical, it doesn’t initiate or further an important debate, and in my opinion it isn’t worth spending time on. EV’s a law prof. He’s smart and he’s read a lot of cases. His academic opinions on, e.g., the First Amendment, are worth paying attention to. His purely personal musings on society, though, are about as valuable as your average Usenet kook’s. And I don’t believe that has anything to do with his membership in some putative libertarian or Rightwing political grouping.
The “Left,” whatever that is, and I guess I’d consider myself a member thereof, would be better served spending its time developing a positive, constructive vision of society. But people like EV cannot be allowed to set the terms of discourse. Make fun of him, ignore him, it doesn’t matter. Just don’t make the mistake of taking him seriously just because others make the same mistake. Basically, who cares what he thinks?
I find the argument particularly disgusting because there are plenty of people who want to believe that the more the harassed person complains, the more s/he really wanted it, which fraud of reasoning justifies force in touching. And this is proposed by a libertarian? !
If someone doused a subway car with sneezing powder, or itching powder, then passengers would feel harassed, violated, possibly even like they had a legal case. In fact, we would find it MORE harmful if their bodies had been forced to sneeze, or itch, involuntarily than if they merely observed but were unmoved. Even if we imagine that EV were right about his (deeply offensive) theory that sexual assault aroused women against their will, then it would be like the case of sneezing powder – even if the harasser never touched the unfortunate subject.
So even if we pretend to accept EV’s (absurd, offensive) premises, the conclusion that there is a real crime against an autonomous individual stands.
Even if sex isn’t icky, but something worth thinking about while you masturbate furtively, alone.(oops)You all seem to be missing it. He’s rationalizing his own reasons for fondling strange women. Perv.
I’m a big fan of thought experiments. You know, like “gee, what would life be like without Grover Norquist?” But this one is ridiculous. I’m also a big fan of creme brulee, and I have the button and bumper sticker for all to see, but if someone came up to me and poured one into my shirt pocket, it not only wouldn’t get me all hungry and salivating, but I’d think it would be patently insane to even consider that possibility as some sort of explication as to why my shirt shouldn’t be dripping unwanted custard.
Shorter version: I agree with Uncle Kvetch.
This is a classic example of someone wandering outside his field (the law) into another (psychology) and getting lost immediately.
He shuld leave it to the pros.
Dan K: The idea that we should dispassionately discuss whatever fucked up right wing loonie “points” are “raised” is not tenable. What precisely is the difference between EV’s type of arguments and, for example Elijah Muhammed’s claim that white people are the result of an experiment to create evil monsters or some LaRuchian theory? By accepting such attacks as if they were rational argument instead of attempts to discredit the basic rules of civilization, one cooperates with them. EV disguises brownshirt ideology in a nicely worded, middle class, professional language. But it remains brownshirtism all the same.
It seems to me that Volokh and some others are missing the main issue: consent.
Human sexuality being the complex and sometimes inconvenient thing it is, we frequently are turned on things we don’t think we should be turned on by (and some are in turn aroused by that very shame). The key here is consent. Consent, consent, consent. Consent makes all the legal and ethical difference between being a Peeping Tom and being a welcomed, acknowledged voyeur to other’s lives.
So, the fact that someone may be involuntarily turned on by unwanted sexual contact matters not one iota – that’s between them and their pants. The overriding factor is that they have not given their consent.
Godwin’s Law raises its head!
I don’t know about you folks but I got the impression that Volokh was trying to legitimize rape in order to make sure that feminists, or women who like to dress in something other than a burqa, get what’s coming to them so they’ll stop mouthing off to their male superiors, marry one of those male superiors, and abdicate their right to vote, hold jobs, own land, and listen to the husband dictate how the children will be raised(including the daughter who will wear a celebacy ring given to her by daddy until said daddy approves of the republican suitor)
MYOB’
.
I don’t know much about this dude, but lord knows there’s no dearth of edjumacated straight white narcissistic-to-begin-with dudes going steadily more reactionary/bonkers/senile over the years, especially since (here it comes) 9/11. Everything Changed! except some things.
The idea that we should dispassionately discuss whatever fucked up right wing loonie “points” are “raised” is not tenable.
Sure. But do you think that the question of what the laws which prohibit unwanted sexual touching are based on is a loonie question that shouldn’t be raised?
Where did people get the idea that Volokh was arguing that laws against unlawful touching were bad?
Scott Lemieux: I forgot what a beautiful sentence Jim Henley had written about Volokh. Thank you for reminding me.
Where did people get the idea that Volokh was arguing that laws against unlawful touching were bad?
See comment 100 (right above yours) and ask that question again. Or is questioning the basis of a law completely different from questioning the law itself?
I think you guys have a serious groupthink hive going here. There are certainly previous examples of Eugene Volokh being an autistic about certain issues, but this doesn’t strike me as one of them.
Wasn’t the whole problem with Dora, according to Freud, that she was not aroused by her father’s friend pressing his erection against her, and that her nonresponse was unnatural and demonstrated that she required analysis? And didn’t that sort of thinking persist in the adaptationist school of psychoanalysis up through the 1960s in the U.S. (vide pop psychoanalyst Eric Berne’s What Do You Say after You Say Hello?)? If so, EV’s speculations are part of a discourse that’s done a huge amount of damage and deserves the vitriol.
Where did people get the idea that Volokh was arguing that laws against unlawful touching were bad?
I didn’t think anyone had that idea (and since comments keep showing up in the middle of the thread, I haven’t read them all). It seems to me that the complaint is that Volokh’s account of the basis for such laws is off base, and rests on a false and offensive assumption (that, in a non-negligible number of cases, women are aroused by involuntary sexual touching).
I’ve read EV’s post in full and I remain baffled by the response here.
First, it’s important to note that he’s interested in why the law treats certain kinds of touching with greater severity than other forms of touching that look on the surface to be very similar. I think his argument depends on the notion that the laws don’t track the idiosyncracies of individuals, but instead the opinions of society as a whole (or of a large segment of society).
Suppose a thief takes your favorite watch. The police catch him, but not until after he’s disposed of the watch. The police want to charge him with petty larceny because the watch can be replaced for $500. You argue that he should be charged with grand larceny because the watch was given to you by your parents and you wouldn’t have parted with that particular watch for a million dollars.
Under our legal system, you lose that argument—the thief is charged with petty larceny. (There are exceptions, such as when the value of an item is stipulated by contract, but I think I’m right about the general trend.) Indeed, it’s hard to imagine a workable alternative for any number of reasons. For one thing, deterrence depends on predictable punishments. Secondly, you would create an incentive for victims to exagerrate their injuries and it would be difficult to uncover such exaggerations.
Granted, looking to the convential wisdom may lead to injustices, such as the undeniable way that our society has devalued the concerns of women; but as a practical matter the only solution is to find better general rules, not to try to do without them.
For reasons that I don’t understand, people here seem to think that EV’s argument leads to the conclusion that sex crimes are no big deal. Actually, what he’s trying to understand is why some types of conduct are considered offensive while very similar conduct is not. Yes, he’s using hypotheticals that may not seem to do justice to the enormity of sex crimes. However, one way to test a theory—a good way I think—is to see how its implications play out in borderline cases.
Some people here seem to think that an individual’s personal sense of outrage should govern the proper punishment. Think about the implications of that. Suppose there’s a person who feels that to be touched on the arm is a violation of his person, perhaps because of the way someone had abused him in the past. A stranger touches his arm to let him know that he dropped his wallet. Even if the victim genuinely felt that he’d been raped, do we really want to punish the toucher as if he were a rapist? (Yes, I realize that this is a somewhat far-fetched example, but that’s the nature of a reductio ad absurdum argument.)
Now is there any kind of conduct that is offensive because it involves the arousal of the victim? I think so, not least because arousal can lower one’s barriers and leave one more vulnerable to attack. Consider, for instance, a cliche from movies about teenagers. A girl who is an outcast among her peers reveals her crush on the school quarterback when he catches her stealing glances at him. He goes over to her with a bunch of his buddies and humiliates her by sidling up to her and pretending to be smitten. Is it possible that the girl’s feeling of being violated are mixed with some sexual excitement? Indeed, I think it’s precisely because of her attraction and the ease with which it can be manipulated that allow the quarterback to so thoroughly humiliate her. (That scenario is the backbone of movies like Carrie, bu t it rings true to the kinds of things I observed in my high school.)
In any event, EV doesn’t necessarily need to come up with cases in which a particular victim was aroused. Although he’s a little ambiguous on this point, he seems to be arguing that conduct is considered offensive if society at large thinks that the arousal of either the actor or the recipient would usually be the aim of such conduct. Thus, it isn’t necessary that the victim be aroused in order for an action to be considered offensive. What matters is the nature of the conduct—does it mimic behavior that would usually involve the arousal of one party or the other? (In fact, it is one of the particular horrors of sex crimes that they mimic behavior that is usually an expression of love.) See his next-to-the-last paragraph, in which he builds the case that a victim’s feelings can’t be the only basis for establishing a general rule because of the difficulties caused by individuals who think a tap on the shoulder is equivalent to a hand on one’s genitals (and remember that he’s talking about how our imperfect legal system should treat these cases, not how a god who can see into souls would judge them). A general rule may not satisfy an extremely sensitive victim, but it may also treat harshly an act that brings little or no offense to the recipient (some would argue that prosecution of prostitution fits that pattern).
That’s the only way in which EV’s argument might lead to less than a full measure of justice—a general rule may not satisfy the victim who experiences a crime more sharply than most people would. I don’t see how his argument leads to any conclusions about how severe the general rule should be.
EV’s theory may even account for situations in which neither of the participants objects to touching, yet onlookers are offended. Two people sit down on a bus. One presses his or her body against the other without invitation, the attraction is returned, and their making-out gives offense to other people on the bus (a rare occurence perhaps, but not unheard of).
It’s one of my pet ideas that the leftwing blogosphere is less likely to sink to ad hominem attacks than the right. This thread really puts that idea to the test. EV is engaging in a commonplace kind of legal analysis. Perhaps you should try to understand it before condemning him.
But do you think that the question of what the laws which prohibit unwanted sexual touching are based on is a loonie question that shouldn’t be raised?
Fine question, but it would clearly need to be answered historically, not through a “thought experiment”…let alone what EV apparently thinks passes for a thought experiment.
Here’s a scenario that isn’t quite so emotionally charged that I think illustrates the sort of argumentative strategy EV is using.
On each of two separate days you see a car run over pedestrian. To the outward eye, the two events seem identical in all relevent respects (struck from behind, killed on the spot, etc.).
You later learn that the law gave one driver a sentence of five years while the other was put away for life. That’s a puzzle, isn’t? (similar to the puzzle caused when one act of touching is punished more severly than another that is almost identical in outward appearance.
Looking further into the matter, you discover that one driver said to the passenger beside him, “Did you see where I put my cigarettes?” The second driver said to the passenger beside him, “I’m going to kill that bastard!”
Wait! That seems to be a clue—maybe the difference in punishments is explained by the differences in intent! Do ya think? One driver just wasn’t paying attention while the other driver set out to kill his victim. (EV is suggesting that the sexual implications of an act may serve a similar explanatory purpose when it comes to offensive touching.)
Please note that this method of examining the issue—a kind of differential diagnosis—in no way implies an equivalence between manslaughter and murder. (Just as EV’s argument in no way implies that a rape is equivalent to a tap on the shoulder.)
Glenn/Gary: it’s not a bad guess that this thread is infected with groupthink. But I would offer that’s what’s really going on is that the people responding here have seen quite enough of EV’s sickeningly disingenuous technique of pretending not to understand what’s wrong with obviously heinous crap, on his way to insinuating nasty things about gays, The Left, etc., etc., and now he gets no slack at all. You can argue that he’s making a serious point here, somewhere. But who cares anymore, and who wants to dig for it? He’s overused his pet rhetorical techniques in the service of partisan ends far too many times, now he’s out of credits. If I could be bothered, it would be easy to link to at least 2 dozen VC posts of his that all have the same, nauseating “maybe I’m missing something, but I just don’t understand what’s wrong with killing puppies/demeaning the Left/etc., somebody please fill me in” tone to them. They’re close enough to plausible hypotheticals or thought experiments to be infuriating when you realize they’re just Left-baiting at bottom. So I think a lot of what you’re seeing is built-up anger at this guy.
Gary,
I think Volokh’s suggestions are quite implausible. I decide to take a look at what some of the laws against public lewdness and indecent exposure actually say, and concerns about sexual arousal of the victim are not at all prominent. The predominant concern seems to the “affront”, “alarm”, “offense” or “annoyance” that the acts actually cause, are likely to cause, or are intended to cause. Some refer to the intent of the perpetrator to “abuse, humiliate, harass, or degrade another”.
Many explicitly place the criminal intent in the perpetrator’s aim to arouse or satisfy his own sexual desire. Some broaden that by refering to the perpetrator’s intent to arouse or satisfy the sexual desire of either the person committing the act or “any other person”.
I suppose the latter could be construed as including the victim, so that there is criminal intent if the perpetrator intends to arouse the viewer. But the overwhelming impression conveyed by reading these laws is that the concern is not the the wiewer might actually be aroused by the display, but rather that the viewer might by affronted, annoyed or alarmed by the display; and there is a very prominent concern with the perpetrator’s self-gratification.
Now why would that be the case? Why should society be concerned with such forms of self-gratification? I think there is a fairly obvious reason that has nothing at all to do with any worries about the sexual arousal of the victim. And in the case where intentional touching is involved – rather than mere display – surely the threat is even more obvious. I assume offenses of the latter kind are classified as various kinds of sexual contact or sexual assault. In all such cases a person has used the person or body of another, without the latter’s permission, in order to achieve sexual gratification. Such acts in themselves violations of another person; but they also fall on a continuum that includes at the furthest end violent sexual assault. I suspect that the framers of these laws generally believed – with some justification – that public lewdness and sexual touching are a kind of exploitive behavior that, if not prevented and deterred, are often the initial steps in a transgressive cycle of progressively more aggressive and violent sexual thrill-seeking.
Why is there a separate category of sexual harrassment, as opposed to just ordinary harrassment?
I was kinda assuming for the same reason we have separate catagories for “rape” and “assault” or “theft” and “fraud” but then I also assumed that was pretty damn obvious, so I guess I could be wrong.
First, it’s important to note that he’s interested in why the law treats certain kinds of touching with greater severity than other forms of touching that look on the surface to be very similar.
Silly me, if I was going to try to answer that question, I’d first look at similar cases – like why rape is illegal but sex isn’t, or why teenagers can have sex with each other and with adults, but adults can’t have sex with teenagers, or why the swimsuit calender in the breakroom is harrassment but the wildlife calender is not.
I certainly wouldn’t jump to a conclusion that makes very little sense and then argue for that conclusion despite a large amount of evidence to the contrary.
But, then again, I’m not a law professor, so what do I know. I must be the “baffling” one.
Aren’t you overanalyzing a bit, Dan. Wouldn’t it be much easier to argue that the laws against public lewdness are based on so-called ‘Judeo-Christian values’ (not that ‘Islamic values’ are any different); the most relaiable, most celebrated form of indoctrination.
As far as “transgressive cycle of progressively more aggressive and violent sexual thrill-seeking” goes, it is quite likely, of course, that the framers of ‘Judeo-Christian values’ had exactly that in mind, but come on – that was thousands of years ago, who cares. Does this really deserve your attention?
I’m also a big fan of creme brulee, and I have the button and bumper sticker for all to see, but if someone came up to me and poured one into my shirt pocket, it not only wouldn’t get me all hungry and salivating, but I’d think it would be patently insane to even consider that possibility as some sort of explication as to why my shirt shouldn’t be dripping unwanted custard.
The analogy is probably more with being pied in the face by your enemies: this is assault, even if you like cream pies and even if it is done by leftist entarteurs in the grand Dada tradition and it happens to Ann Coulter. A world-class seducer who moves in on someone who doesn’t want it is still a sexual harasser.
Why can’t some people practice good clean (consensual) BDSM? I think Volokh needs to come out instead of gratifying himself with intellectually convoluted and dubious political arguments.
Creepy US society with creepy over-intellectualised views. The outraged Belle and Volokh trying to come up with some weird, patently implausible theory. Where are the Teletubbies?
EV mostly asks questions but none of it makes sense unless he is confusing the origins of a taboo with reasons for being concerned about breaking it. A less emotive example for Gary would be
In other words he has totally missed the point. Maybe his argument has something to do with why I attract someone’s attention by tapping their shoulder and not their breast. It’s not the reason that I can’t grab the crotch of the person sitting next to me on the train.
Mr. Volokh should also be careful with the hugging in the UK.
oh now come on, girls. EV knows we’re all about the sex. It’s the only thing we think about, the only thing we want. Any and all guys are sexy to us, and we want them all, even the ones with filthy hands, rotting teeth and who are so disgusting they jerk off next to us on a bus.
EV’s read Heinlein. He knows us better than we know ourselves!
It’s time to forget about the beer, Belle. There’s a pubic hair on the can and the content utilizes an old recipe reminiscent of old-fashioned pisswater.
Being a guy, I’ve been privy to too many all-guy discussions loaded with sexism and assorted inanities. Only a very few, however, displayed concepts that qualified as too creepy. And those who uttered them immediately qualified for my ‘avoid further communication’ list.
Volokh has joined those special few. Let them enjoy their Bear Whiz beers in solitude or in the company of Scooter Libby’s bear and Conan O’Brien’s bear.
Gary, if it really seems to you that getting someone’s attention by tapping her on the shoulder and grabbing her genitals are “very similar,” so that there is some deep mystery about why the law and ordinary morality treat them differently, then you, like Volokh, are too damaged to think reasonably about the matter. That’s not an ad hominem argument—just an observation: if someone lacks the ability to perceive obvious differences, that incapacity cannot generally be compensated by providing him with a theory.