You Just Flunked Out Of Feminism 101. Wait, Stupid Also Just Failed Out Of Moron.

by Belle Waring on May 6, 2006

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.???

{ 3 trackbacks }

Feminist Law Professors » Blog Archive » Hands Off
05.06.06 at 5:35 pm
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05.07.06 at 3:25 am
Longhorn Law » Blog Archive » Offensive touchings
05.07.06 at 1:16 pm

{ 199 comments }

1

Belle Waring 05.06.06 at 8:04 am

did I say what the fuck? coz I was totally thinking that shit.

2

Iron Lungfish 05.06.06 at 8:29 am

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.”

3

Rob 05.06.06 at 8:41 am

Here I think we see where being a “progidy” can completely warp your vision of the entire world.

4

Tom T. 05.06.06 at 8:56 am

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).

5

chris uggen 05.06.06 at 9:22 am

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.

6

Inigo Jones 05.06.06 at 9:37 am

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.

7

Uncle Kvetch 05.06.06 at 9:43 am

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.

8

Daniel 05.06.06 at 9:45 am

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.

9

Belle Waring 05.06.06 at 9:57 am

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.

10

abb1 05.06.06 at 10:06 am

Is this the guy who wants to turture criminals for fun?

11

Matt McGrattan 05.06.06 at 10:07 am

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.

12

otto 05.06.06 at 10:16 am

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 …

13

Matthew 05.06.06 at 10:21 am

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.

14

Randy 05.06.06 at 10:28 am

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.

15

Seth Finkelstein 05.06.06 at 10:33 am

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.

16

Matt 05.06.06 at 10:33 am

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.

17

Daniel 05.06.06 at 10:35 am

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.

18

Barry 05.06.06 at 10:35 am

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.

19

Sebastian Holsclaw 05.06.06 at 10:49 am

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.

20

v 05.06.06 at 10:51 am

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…

21

abb1 05.06.06 at 10:54 am

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.

22

conchis 05.06.06 at 11:00 am

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.

23

David Sucher 05.06.06 at 11:09 am

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.

24

Seth Finkelstein 05.06.06 at 11:16 am

#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.

25

ben alpers 05.06.06 at 11:21 am

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.

26

abb1 05.06.06 at 11:22 am

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.

27

Daniel 05.06.06 at 11:24 am

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.

28

Iron Lungfish 05.06.06 at 11:25 am

“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?

29

Russell L. Carter 05.06.06 at 11:32 am

“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.

30

PZ Myers 05.06.06 at 11:39 am

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.

31

belledame222 05.06.06 at 11:40 am

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.”

32

Inna 05.06.06 at 11:46 am

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.

33

Adam Kotsko 05.06.06 at 11:51 am

Volokh should not be read, ever, by anyone.

34

jayann 05.06.06 at 12:17 pm

“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?

35

Seth Finkelstein 05.06.06 at 12:18 pm

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.

36

yabonn 05.06.06 at 12:20 pm

Someone has been reading to much John Norman, mmhm?

Ah, those libertarians. 13 one day, 13 for ever.

37

Dan Kervick 05.06.06 at 12:24 pm

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.

38

Alex 05.06.06 at 12:49 pm

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.

39

Russell L. Carter 05.06.06 at 12:49 pm

“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!)

40

david 05.06.06 at 12:55 pm

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.

41

abb1 05.06.06 at 1:23 pm

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.

42

Barry Freed 05.06.06 at 1:53 pm

Don’t touch EV. He’s evil!

43

agm 05.06.06 at 1:57 pm

Did anybody read the comments? Volokh’s idea got schooled in the very first one. That pretty much covers it.

44

agm 05.06.06 at 2:02 pm

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.

45

agm 05.06.06 at 2:02 pm

Feature request: the ability to edit typos…

46

Marky 05.06.06 at 2:51 pm

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.

47

Mal de mer 05.06.06 at 3:02 pm

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.

48

Eli Rabett 05.06.06 at 3:05 pm

Next time you see Gene, give him a friendly goose.

49

c4logic 05.06.06 at 3:11 pm

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.

50

nick s 05.06.06 at 3:16 pm

51

Interrobang 05.06.06 at 3:23 pm

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.

52

Gary 05.06.06 at 3:24 pm

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.

53

genoasail 05.06.06 at 3:24 pm

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?

54

citizen k 05.06.06 at 3:42 pm

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.

55

MFem 05.06.06 at 3:43 pm

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.

56

Gary 05.06.06 at 3:52 pm

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.

57

Flora 05.06.06 at 3:54 pm

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!

58

ricky 05.06.06 at 3:55 pm

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.

59

Angie 05.06.06 at 3:57 pm

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.

60

Phoenix Woman 05.06.06 at 4:05 pm

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.

61

asg 05.06.06 at 4:05 pm

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.

62

name 05.06.06 at 4:13 pm

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!

63

julia 05.06.06 at 4:16 pm

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.

64

Seth Finkelstein 05.06.06 at 4:21 pm

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]

65

Bobby St. Chomsky 05.06.06 at 4:31 pm

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!

66

citizen k 05.06.06 at 4:38 pm

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!

67

NotThatMo 05.06.06 at 4:42 pm

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.

68

Daryl McCullough 05.06.06 at 4:42 pm

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.

69

vivian 05.06.06 at 4:43 pm

Thanks, Belle.

70

abb1 05.06.06 at 5:12 pm

I like the name: “Eugene Volokh”. Sounds cool.

71

David Sucher 05.06.06 at 5:19 pm

“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.

72

Uncle Kvetch 05.06.06 at 5:25 pm

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.

73

Scott Lemieux 05.06.06 at 5:35 pm

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.”

74

fishbane 05.06.06 at 5:38 pm

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.

75

Guest 05.06.06 at 5:42 pm

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.

76

Sperm Donor 05.06.06 at 5:54 pm

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.

77

MaryCh 05.06.06 at 5:55 pm

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).

78

Flamethorn 05.06.06 at 5:59 pm

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.

79

Dan Kervick 05.06.06 at 5:59 pm

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.

80

Rich Puchalsky 05.06.06 at 6:10 pm

“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.

81

Adam Kotsko 05.06.06 at 6:49 pm

65: Racial boundaries? What?!

82

Dan Kervick 05.06.06 at 6:57 pm

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.

83

Dan Kervick 05.06.06 at 7:06 pm

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?

84

Randolph Fritz 05.06.06 at 7:11 pm

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?

85

Libby Spencer 05.06.06 at 7:27 pm

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.

86

vivian 05.06.06 at 7:43 pm

“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?

87

Seth Finkelstein 05.06.06 at 7:48 pm

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.

88

Guest 05.06.06 at 7:54 pm

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?

89

clew 05.06.06 at 7:55 pm

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? !

90

vivian 05.06.06 at 7:57 pm

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)

91

russel martin 05.06.06 at 8:01 pm

You all seem to be missing it. He’s rationalizing his own reasons for fondling strange women. Perv.

92

R.Porrofatto 05.06.06 at 8:19 pm

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.

93

Randy Paul 05.06.06 at 8:20 pm

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.

94

citizen k 05.06.06 at 8:28 pm

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.

95

demolitionwoman 05.06.06 at 9:41 pm

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.

96

Tom T. 05.06.06 at 9:42 pm

Godwin’s Law raises its head!

97

MYOB 05.06.06 at 9:46 pm

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’
.

98

belledame222 05.06.06 at 9:49 pm

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.

99

Dan Kervick 05.06.06 at 10:38 pm

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?

100

Sebastian Holsclaw 05.06.06 at 10:58 pm

Where did people get the idea that Volokh was arguing that laws against unlawful touching were bad?

101

Walt 05.06.06 at 11:14 pm

Scott Lemieux: I forgot what a beautiful sentence Jim Henley had written about Volokh. Thank you for reminding me.

102

Mnemosyne 05.06.06 at 11:24 pm

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?

103

Glenn Bridgman 05.06.06 at 11:24 pm

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.

104

Mr Ripley 05.06.06 at 11:42 pm

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.

105

Matt Weiner 05.06.06 at 11:49 pm

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).

106

gary 05.06.06 at 11:57 pm

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.

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ben alpers 05.07.06 at 12:08 am

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.

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gary 05.07.06 at 12:53 am

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.)

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Guest 05.07.06 at 12:56 am

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.

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Dan Kervick 05.07.06 at 1:00 am

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.

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Mickle 05.07.06 at 2:51 am

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.

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abb1 05.07.06 at 4:06 am

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?

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sara 05.07.06 at 4:19 am

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.

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harry clarke 05.07.06 at 4:50 am

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?

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Jack 05.07.06 at 4:59 am

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

Why do we drive on the right? Some might argue that it is because it makes it easier for a cart driver to crack the whip with his right hand. But that can’t be quite right can it? What about people mounting horses with swords? Surely we want them to be able to do that without walking into the road?.

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.

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majkia 05.07.06 at 7:21 am

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!

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Kevin Hayden 05.07.06 at 8:07 am

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.

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SqueakyRat 05.07.06 at 8:51 am

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.

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citizen k 05.07.06 at 8:53 am

Dan K: There are questions and questions. When a German nationalist “asks” whether Auswitchz really was used as an exermination camp or a Confederate apologist “asks” if we haven’t been overly emotional in considering the evils of slavery or a propagandist for right wing authoritarianism “asks” if laws against rape and unwanted sexual contact are not motivated by fear of arousal on the part of the victim, then the “question” has to be seen as a dishonest rhetorical device.

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mudkitty 05.07.06 at 9:27 am

Having been raped, I can say that the concept of arousal is catagoricly untrue.

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Dan Kervick 05.07.06 at 9:43 am

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.

You may be right abb1. But I don’t know what Judeo-Christian tradition, or the common law in Christian countries, says about exposure and public lewdness, so I can’t tell how far back the modern regulations go. I just based my guesses on reading the laws themselves, and noting from their language what the concerns of their framers appear ro be. The modern laws in question involve a sharp distinction between the public and the private sphere, and the proscription of many kinds of acts in public that are permitted in private. They also seem to involve concepts of personal space and autonomy, and offenses or affronts to personal sensibilities. My sense is that these are notions that have evolved gretly over time, and differ from society to society, even in the Judeo-Christian world.

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?

That was just my fancy way of saying that people who violate sexual taboos, and exploit others for their pleasure in the process, may be likely to engage in worse kinds of violation and exploitation in the future. I suspect that is a fairly ancient concern.

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W. Kiernan 05.07.06 at 10:09 am

He seems to be completely unreceptiveThe tests I gave him show no sense at allHis eyes react to light, the dials detect itHe hears but can not answer to your call…

I often wonder what he is feelingHas he ever heard a word I said?Look at him, in the mirror, dreamingWhat is happening in his head?

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W. Kiernan 05.07.06 at 10:10 am

&^%$#@…your STUPID preview DOESN’T WORK RIGHT…

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Dan Kervick 05.07.06 at 10:10 am

Dan K: There are questions and questions. When a German nationalist “asks” whether Auswitchz really was used as an exermination camp or a Confederate apologist “asks” if we haven’t been overly emotional in considering the evils of slavery or a propagandist for right wing authoritarianism “asks” if laws against rape and unwanted sexual contact are not motivated by fear of arousal on the part of the victim, then the “question” has to be seen as a dishonest rhetorical device.

You may be right Citizen K, and I don’t know whether Volokh is being dishonest of expressing his sincere opinion. But my concern is that falsity should be countered by the truth, whatever the motives of the purveyor of falsity.

If someone gets up in public and says: “the slaves enjoyed their slavery”, then although it might be more satisfying to simply set upon the purveyor of the message and verbally attack him, someone should also take the time to refute the assertion, and bring out the evidence showing how miserable was the lot of the slaves. If nobody does this, then even after the speaker has been taken care of, and reduced to a heap on the floor, the view itself is still floating out there, without a clear refutation.

Volokh didn’t exactly say that significant numbers of women are aroused by being groped, flashed or turned into the objects of masturbatory fantasies by strange men in public spaces; he proposed that the fear that they might be aroused by these activities is one motive for the laws. But one might reasonably suspect that he believes the fear is grounded in reality. Whatever his motive, I think the most important thing is to challenge these claims, and not become unduly fixated on the person making them.

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abb1 05.07.06 at 10:11 am

Wikipedia suggests:

Taboos can include dietary restrictions (halal and kosher diets, religious vegetarianism, and the prohibition of cannibalism), restrictions on sexual activities and relationships (intermarriage, miscegenation, sex between people of the same sex, incest, animal-human sex, adult-child sex, sex with the dead), restrictions of bodily functions (burping, flatulence), restrictions on the use of psychoactive drugs, restrictions on state of genitalia (circumcision, sex reassignment), exposure of body parts (ankles in the Victorian British Empire, women’s faces in Saudi Arabia and Afghanistan, nudity in the US), and restrictions on the use of offensive language.

No taboo is known to be universal, but some (such as the cannibalism and incest taboos) occur in the majority of societies. Taboos may serve many functions, and often remain in effect after the original reason behind them has expired. Some have argued that taboos therefore reveal the history of societies when other records are lacking.

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agi 05.07.06 at 10:28 am

mentally-effed-up woman, eh, phoenix woman??

Look, I’m not one to give Volokh the benefit of the doubt, but do you folks really want to drive yourselves into the unenviable position of saying that if a woman (or man) feels any arousal during rape, then it isn’t rape?

We need to distinguish between mental and physical arousal here. I do think the number of women who become aroused to the point of being enamored of their attackers is vanishingly small, if not non-existant. However, I don’t believe this is the case for experiencing some physiological and involuntary signs of arousal.

As a few commenters on this thread note, it is very dangerous to equate arousal and consent. If someone touches some of your most sensitive nerve endings and you have some physical response to it, one that is mediated by fear (which may “present” similarly to arousal, physically speaking), that does not make you any less a victim of rape, groping, etc.

Unwanted arousal and subsequently feeling disturbed by it are not things we should punish sexual assault victims for, so please don’t trade one ignorant dangerous statement (by Volokh) for another (by some of the commenters here).

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W. Kiernan 05.07.06 at 10:35 am

dan kervick: If nobody does this, then even after the speaker has been taken care of, and reduced to a heap on the floor, the view itself is still floating out there, without a clear refutation.

So instead of just snarling “suck it punk,” you issue a detailed three-thousand-word refutation of the prima facie preposterous, I mean contrarian, claim that slaves were grateful to Massa, and you being an innalecshurally-superior academic type, your counterblast is replete with plenty of scholarly footnotes and hypertext links to source texts. (clap clap!) Clapping the chalk dust off your hands you say “Mission Accomplished!”…

No sooner than that, along comes another ‘bot out of another quadrant who briefly states how slaves sho’ ’nuff loved them they paternal old Massa. This time, having thought a bit more more about it, your reply is four thousand words, with twice as many footnotes and three times as many links. This reply of yours is utterly devastating! That should settle this issue once and for all.

Wait, wait, what’s this? It’s a third guy, with a 75-word post quoting an old folk song about how heartbroke those darkies were when they had to leave the warm security of their inveterate slave shacks and fend for themselves in the cold post-Confederate world… You’re ready with five thousand words this time…

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Tata 05.07.06 at 12:25 pm

Though Volokh positions his argument and commenters defend it as legal reasoning some things and people truly are simple and transparent. An example: this man of letters is imagining one that starts “Dear Penthouse…”

Other than “Dude, those are ghostwritten,” what more does one need say?

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Chris Clarke 05.07.06 at 12:46 pm

This thread does in fact illustrate an important point about civility.

It nicely illustrates the fact that there is no argument so monstrous these days that American conservatives won’t complain about lack of civility when someone calls it “monstrous.”

Volokh says that women might secretly want to be sexually assaulted, and what upsets you guys is people calling him an asshole? Is there an ounce of fucking humanity behind your civility fetish?

Yes, I am being uncivil, and deliberately so. Arendt would have had a field day with this thread.

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jayann 05.07.06 at 12:52 pm

he proposed that the fear that they might be aroused by these activities is one motive for the laws. But one might reasonably suspect that he believes the fear is grounded in reality. Whatever his motive, I think the most important thing is to challenge these claims,

Both claims, I take it. A, that such a fear is one motive for the laws, B. that the fear is grounded in reality. But if we can show A to be untrue, then B is irrelevant.

I add that the existence of an unknown number of women, but larger than zero, who fantasize about rape is not IMO a motive for anti-rape laws. And if it were still, we would not need that knowledge to explain why rape is regarded as more serious than an unwanted handshake.

I.e. WTF

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Glenn Bridgman 05.07.06 at 12:59 pm

“Volokh says that women might secretly want to be sexually assaulted, and what upsets you guys is people calling him an asshole? “

Uh, he claimed no such thing.

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bryan 05.07.06 at 2:38 pm

‘“Volokh says that women might secretly want to be sexually assaulted, and what upsets you guys is people calling him an asshole? ”

Uh, he claimed no such thing.’

okay, I’m lost. what was it he claimed then?

Was it that women might secretly enjoy being sexually assaulted and that pisses them off, thus we have laws against sexual assault?

How persnickety must we parse before you can feel we are not being unfair to Mr. Volokh.

Please note that in most areas unwanted sexual touching is sexual assault – in case this is the root of your disagreement.

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pedro 05.07.06 at 3:28 pm

Glenn B.: Volokh didn’t say that the reason unrequested sexual touching is inappropriate is that sexual touching is the kind of thing that would–under different circumstances, and almost certainly changing the identity of the actors–produce sexual arousal, and that thus victims find it particularly intrusive, demeaning, abusive, and repulsive (rather than arousing). Instead, he claimed that unrequested sexual touching is inappropriate *because* it may be sexually arousing. He may find the thought of women getting hot and bothered by unrequested sexual touching intellectually arousing indeed, but the fact of the matter is that this is a lousy and offensive argument.

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Glenn Bridgman 05.07.06 at 4:39 pm

Pedro, I read Volokh as aiming for the first scenerio you outlined and just using very poor wording. Essentially, the rule by which we differentiate regular unwanted touching and sexual assault is by asking, were it not for the fact that it was unwanted, would the behavior be designed to arouse the subject? I’m not sure that is the right place to draw the line, but it seems at least plausible.

Incidentially:http://volokh.com/archives/archive_2006_05_07-2006_05_13.shtml#1147033141

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Glenn Bridgman 05.07.06 at 4:41 pm

Although, on an additionally reading, that “seriously risks doing so” could turn a different way, in which your interpretation is correct. I’m now uncertain.

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person 05.07.06 at 5:03 pm

Gary (#108) has it backwards… The objectionable part of EV’s argument is more like speculating whether one hit-and-run driver got a harsher sentence because one of the unfortunate pedestrians had once made a remark to a trusted friend like, “how will I ever finish this project? well, maybe I’ll just get run over tomorrow and none of this will matter.”

The good thing about EV’s name is that it’s really distinctive, and now that he’s made it clear that he thinks women can be aroused by having their privacy invaded (and in the case of the foot-licker, their mobility constrained) WITHOUT THEIR CONSENT, it will be easy to avoid any private interactions with him… (faculty dinners, ya never know)

I wonder how many men would be turned on by having some guy hang on to their shirtcuff so they can’t leave the train car while the hanger-on is masturbating and leering at them.

Who here gets hot and bothered for a Pap smear or colon check at the doctor’s office? hmmm? and that’s WITH CONSENT.

I agree with the “WTF?” reaction. also, EEWWW.

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JR 05.07.06 at 5:03 pm

#s 55 & 86 have it exactly right. EV is a well socialized pervert who knows that he must not display his sadistic tendencies openly, but every once in a while he takes pleasure in expressing them just a little bit to see the reaction he’ll provoke. I expect that reading this thread makes him positively gleeful.

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Max Renn 05.07.06 at 5:23 pm

Although, on an additionally reading, that “seriously risks doing so” could turn a different way, in which your interpretation is correct. I’m now uncertain.

Posted by Glenn Bridgman · May 7th, 2006 at 4:41 pm

And it’s that uncertainty, coupled with the issues of torture and ‘gay recruiting’ which preponderate to Volokh losing his credits, and generally not being well thought of.

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citizen k 05.07.06 at 5:51 pm

Dan Kervick: “my concern is that falsity should be countered by the truth, whatever the motives of the purveyor of falsity.

And so: “The argument EV makes has no factual grounding and is without even the slightest empirical basis, but rests only on a perverted and anti-human fantasy – showing once again that the current US political right draws from the same sources as the Marquis de Sade.”

Are we done yet?

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BigMacAttack 05.07.06 at 6:50 pm

Belle,

(As if this gets read. Skip to second paragraph.)

Is this what you wanted? Is this what you were looking to provoke? I honestly think a good gag reflex is a healthy thing, though most of the commentators here seem happy to have been made to gag, it gave them an excuse to spray their vomit everywhere, but is that all you wanted?

Lets say we held Eugene down and had some guy go down on him. Sexual reponses are somewhat involuntary. It is quite possible Eugene would respond, he might be forced to orgasm.

Imagine the extra horror and shame this would add to his ordeal.

No chance the law in it’s infinite wisdom takes some account of that? On any level to any degree?

Should it?

Eugene’s post was insensitive at best, but a charitable and cautious reader would infer that he was only trying to speculate, that perhaps the horror and shame of any involuntary sexual arousal is a small part of the reason why we treat different contact in different ways.

Eugene’s post was awful.

Whatever.

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Brett Bellmore 05.07.06 at 7:01 pm

“It nicely illustrates the fact that there is no argument so monstrous these days that American conservatives won’t complain about lack of civility when someone calls it “monstrous.””

Nah, it illustrates the fact that conservatives don’t want to empower the left to silence any argument that they doesn’t like by shouting “Monsterous!”, irrespective of it’s merits. Better to require that even genuinely monsterous arguments be met with civil refutation, than to hand you that “end the argument free” card.

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SE 05.07.06 at 7:05 pm

“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.”

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Sam Boogliodemus 05.07.06 at 7:08 pm

I think he may be onto something. A family freind is a rape counselor and said that one of the things which make women feel like it was their fault is that some victims/participants not only actively participate, but continue to fantasize about it afterwards.

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Ben Alpers 05.07.06 at 7:17 pm

Nah, it illustrates the fact that conservatives don’t want to empower the left to silence any argument that they doesn’t like by shouting “Monsterous!”, irrespective of it’s merits. Better to require that even genuinely monsterous arguments be met with civil refutation, than to hand you that “end the argument free” card.

Brett,

How is anyone on this thread in any way silencing EV? Surely his free speech rights, which I think we’d all defend, do not require us to take the substance of his offensive and ridiculous arguments seriously.

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Dan Kervick 05.07.06 at 7:29 pm

And so: “The argument EV makes has no factual grounding and is without even the slightest empirical basis, but rests only on a perverted and anti-human fantasy – showing once again that the current US political right draws from the same sources as the Marquis de Sade.”

Are we done yet?

I don’t know about “we”, but as far as Volokh is concerned, I was done a long time ago. In all my comments I tried to steer the discussion away from Volokh’s own views on the basis for laws against unwanted sexual touching, and toward alternative accounts of the basis for those laws. I also tried to broaden the discussion to include other laws, related to public lewdness and exposure, following upon some suggestions made by Belle Waring in her initial post.

But as far as I can tell, hardly anyone wants to discuss these issues, seized as they are with the much more important matter of the diabolical and perverted Mr. Volokh. So I guess I am done.

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Luis Bunuel 05.07.06 at 8:02 pm

Ever seen Belle de Jour?

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Marcos 05.07.06 at 8:16 pm

I’d say that if you’re trying to make monkeys obey, the first thing you should do would be isolating males and females. Remember, monkeys will refuse to wear cloths ’til they can only be given back what was taken away from them.

We got to such a point of obedience that good males will see prepared females on the streets and they won’t initiate the mating rituals.

In fact, the much hormone women have taken has controlled their instinct really well. Even if they die more from cancer and suffer more of depression today. Men have gonne gay and there are studies about the degeneration of the cromossome X, teh masculine one. Of course, we don’t need to fight to get the best females anymore. It’s all about the money. Fortunately many people still can’t control their impulse sexual drive. Natural is beautiful, get naked now.

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lostingotham 05.07.06 at 8:36 pm

Now that we’ve all had fun pillorying Volokh, I wonder if anyone has any thoughts on his original question of why public display of the private parts and/or public sexual contact is considered offensive, when analogous behavior with no explicit sexual component is not. And note well that by asking the question I’m only attempting to understand the background for our current common law–NOT trying to justify rape or frottage or whatever other horrors seem to become immediately attached to any attempt at a mature discussion of sexual behavior and public policy (Queen Victoria, you’ve got nothing on us!)

149

Thomas 05.07.06 at 11:37 pm

agi, back up in post 128, linked to a very interesting discussion at the happyfeminist blog. (I say it’s interesting, but perhaps I just mean it’s frightening, or reactionary, or linked somehow to torture, or ill-founded, or offensive. Or maybe I mean some people will surely disagree.) Anyway, here’s the bit I found interesting:

A commenter, responding to a post about statutory rape of a boy, says:

“But isn’t there at least one good reason for treating male-on-female statutory rape differently than female-on-male statutory rape? That is, a woman can’t have sexual intercourse with a man unless he has an erection, which means at least at some level he is choosing to do it. Whereas a man can force himself on a woman who is definitely not aroused. To me, this is a difference that matters — the experience will probably not be physically painful to a male victim, for example.”

To which another commenter responded:

“The problem is that arousal does not equal consent. People, especially males, can become aroused when frightened and not consenting, at the sight of a naked form, or from talk about sex. To say that the arousal of the victim makes the offender any less blameworthy is to say that the victim “really wanted it”. And victim blaming isn’t OK whether the victim is male or female.”

To which happyfeminist responded:

“BUT I don’t think that a boy’s physiological arousal necessarily means he was fully consenting. In fact, I think a boy’s physiological arousal, while physically pleasurable, may be damaging emotionally. If the boy regrets having sex with the older woman, the fact that he enjoyed it on some level and was an active participant might make him feel worse. (Female victims have told me that their physical arousal during coerced or statutory rape has made them feel incredibly confused and guilty and angry.)”

I’m sure the appropriate response to these posts is to condemn these poor souls for their temerity–silence is surely the only appropriate reaction to any of this. But it is interesting, to me at least, to see that Volokh’s post (and his update) line up most closely with happyfeminist’s, and that the good feminists here are busy insisting that these real women referred to by happyfeminist, women victimized by rape and sexual assault, should be victimized again, by claiming, again and again, that consent and physical arousal are inextricably linked. These women, happyfeminist tells us, feel confused and guilty and angry about their physical response to rape. What do the good souls here tell them? That they should–that their physical reaction is aberrant, and shouldn’t be discussed. In short, that there’s something wrong with them, with a strong suggestion that they should feel guilty. How that became the feminist line at CT is surely worth examining, but I’m not nearly brave enough to undertake the job.

150

citizen k 05.08.06 at 2:26 am

I wonder if anyone has any thoughts on his original question of why public display of the private parts and/or public sexual contact is considered offensive, when analogous behavior with no explicit sexual component is not

Try going up to someone in the subway and rubbing his or her face – maybe a Three Stooges nose grab. To EV that may be arousing, but to most of us it’s simple assault. The obvious fact is that EV’s “question” is as innocent an example of intellectual curiousity as the Bell Curve or wondering whether the gas chambers really coulda been used for murder.

151

Kenny Easwaran 05.08.06 at 2:38 am

68 – I have a friend who was almost sued for sexual harrassment for doing precisely that! [touching someone’s nose – unfortunately not while saying “beep”.] Fortunately, the “assaultee” didn’t try to press charges until more than a year later, so when the police came by my friend’s place early in the morning, they just lectured to him that touching someone’s nose is illegal, and that he should be careful in future, though the statute of limitations was up for this case, and the guy who complained was really just overreacting.

152

a nony mous 05.08.06 at 2:47 am

Do people really think that it’s so surprising that someone could get aroused by unwanted physical contact, and that this arousal may be part of what makes the contact unwanted? Of course, in many (probably most) cases, that’s certainly not the main problem – but it can certainly be one of them in some cases.

153

Lorna 05.08.06 at 4:35 am

Okay, so I’m into S&M. In the world according to Volokh, if I punch a guy, is the only problem that he might derive involuntary sexual arousal from it?

154

Brett Bellmore 05.08.06 at 5:38 am

“How is anyone on this thread in any way silencing EV? Surely his free speech rights, which I think we’d all defend, do not require us to take the substance of his offensive and ridiculous arguments seriously.”

Probably only because you don’t have the CAPACITY

155

Brett Bellmore 05.08.06 at 5:50 am

Capacity to silence him, judging by liberal attitudes towards campaign censorship laws, and the kinds of speech codes that keep showing up on liberal dominated campuses.

I said, “end the argument free” card, and it takes two to argue. What you’ve been asserting is that because you recite the word “monsterous”, whatever line of argument or thought exeriment EV was pursuing at the time ceases to have any claim to be met with reasoned argument. That shouting “monsterous” abolishes the normal presumption that the side that doesn’t muster rational arguments loses, and hands you a free win.

THAT is what we must reject, because if rational argument becomes optional where “monsterous” arguments are concerned, how do you rebut false claims that an argument is monsterous?

It’s kind of like having the government claim that certain crimes dispense with the need for trials… Even if this were reasonable, without the trials, how would you prevent the government from just lying about whether somebody had committed one of those crimes?

It’s not, after all, as if the left never resorts to synthetic outrage for rhetorical purposes…

156

abb1 05.08.06 at 6:36 am

I think the outrage usually erupts when a relatively mainstream fella starts acting looney. No one usually cares where a fringy fella is acting loony. Thus, this is hardly an attempt to silence: if you want to move to the fringes, fine, go right ahead and say and publish anything you want.

OTOH, “what does constitute ‘the fringes’, exactly?” is a valid question too…

157

citizen k 05.08.06 at 8:09 am

So Brett, your opinion is that no matter what EV says, he is entitled to a respectful hearing? He can whistle Dixie and call for the return of slavery and we’re under some sort of obligation to nod seriously and begin researching a considered response? Does this obligation only apply to EV, or do we gotta respectfully debate the Protocols of the Elders of Zion with Saudi newspapers and so on?

158

Raw Data 05.08.06 at 9:03 am

“How is anyone on this thread in any way silencing EV?”

Read the whole thread of comments.

Many people on this thread — mostly guys? mostly over-compensating out of guilty memory? — have gone ballistic. And in that tone of personal hostility to EV is an attempt to silence by creating a “hostile atmosphere.” And it is hostile. Listen to yourselves. It sounds like a lynch mob. A great number of the comments are extremely personally hostile to EV and skip over his ideas to attack him.

159

Michael Bérubé 05.08.06 at 9:52 am

Speaking of monstrous arguments: I liked Volokh better when he was writing about how much he liked “the involvement of the victims’ relatives in the killing of the monster”. That was kewl. But now I kind of wonder what would happen if we combined the “unwanted touching” post with last year’s “I’m down with Iranian justice” post. I mean, what happens when Creepy Gene meets Bloodthirsty Gene?

160

Raw Data 05.08.06 at 10:16 am

And Berube offers a perfect example. Pays no attention to the ideas — it’s all “People” magazine type thinking.

161

abb1 05.08.06 at 10:21 am

What ideas?

162

citizen k 05.08.06 at 11:26 am

Raw Data: The question I have for you is what does it take for you to consider a writer/commentator beyond the bounds of discourse. EV’s little speculations about whether the purpose of laws against sexual harrassment might be to prevent girls from getting all lightheaded are among a series of essays in which he has justified torture, “wondered” if public execution by vitims families was all bad and so on. If EVs chain of speculations went in all directions, he could be dismissed as a harmless crank. But oddly enough, his thought experiments, wonderings, and demurrals all have the same political slant. So impatient people like me dismiss him as a propagandist for power rather than as a harmless ignoramous. You seem to want us to take him seriously as a commentator – what does he bring to the table here other than an educated way of saying what we otherwise get as “kill towelheads” and “I hate feminazis”?

163

jayann 05.08.06 at 12:06 pm

“How is anyone on this thread in any way silencing EV?”

Read the whole thread of comments.

Raw Data, all this falls under the heading of free speech and expression, of which EV is a champion, a 1A fundamentalist. (That is how I, who am not, first encountered him; I’m one of the people who thought he was really OK — “was”.) That does not mean we have the right to silence him. But given his status and easy access to platforms and podia we might ask how genuinely “silencing” this thread is. He might not want to come here to answer these comments, but, well, so what?

164

Libby Spencer 05.08.06 at 12:20 pm

Okay, let’s address the premise of EV’s argument for a moment and leave his creepy sexual repression issues out of it. His premise is absurd. The reason non-consenual sexual touching is illegal is the same reason that punching someone in the stomach is illegal but tapping on the shoulder is not. Sexual arousal has nothing to do with it. It’s simply assault that causes discomfort and infringes on another’s personal space.

A case could be made that the roots of a ban on public nudity was rooted in fears of unwanted arousal, particularly a man’s fear of his arousal being revealed in an involuntary erection, however it’s justified in most cases by public health concerns. So for instance nudity on beaches is banned more for reasons of Americans’ discomfort with their sexuality than for any practical reason, but banning nudity on public transit would make sense in terms of public health because harmful bodily fluids could be tranferred to unwitting passengers. Even nudist colonies don’t allow you to sit on a pool chaise without using a towel. This is same reason sexual intercourse in public spaces is inappropriate.

This is not rocket science and attempting to disguise pure sensationalism by positing some psuedo-intellectual arguments about hypothetical motives behind common sense law is just dishonest.

165

Mickle 05.08.06 at 12:59 pm

The reason non-consenual sexual touching is illegal is the same reason that punching someone in the stomach is illegal but tapping on the shoulder is not.

No shit. Plus, tapping someone on the shoulder if you haven’t tried to get their attention verbally beforehand is considered rude even if it isn’t illegal.

Oh, and thomas,

Go ask Happy Feminist what she thinks of Volokh’s argument and see what she thinks. I rather think she’d tell you that you are both full of shit. (but much more politely, of course).

HP was arguing that the mental anguish that is a result of involuntary arousal when attacked is considered part of the damage that is being done to the victim, not that such arousal is the basis for not letting people touch you sexually without your permission.

That’s like saying rape is illegal simply because women may feel bad because their bodies may become aroused in the process. Which is so fucking ludicrous I can’t even wrap my head around such an argument.

166

Mickle 05.08.06 at 1:08 pm

And it is hostile. Listen to yourselves.

Gee, I’m sorry if I get a bit hysterical when someone suggests that the only reason I want to have control over my own body is because I may be emberassed by how it reacts to other people, but, yeah, stuff like that tends to piss me off and generaaly makes the idiots saying sound like, well, idiots.

But you’re right, I’m being too hostile and the fact that I wish fewer people in in authority would believe such idiotic arguments – even though I wish this because I think they make the world a more dangerous place for me to live in – is the same exact thing as my wanting to take away his right to free speech. That is after, all why I’m planning a takedown of his site at this very minute.

But I’ll stop now, because I’m being hostile.

167

belledame222 05.08.06 at 2:55 pm

HELP, HELP, HE’S BEING OPPRESSED!!

too too funny. a critique-cum-snarkfest of one Internets persona by another is “silencing?” not even if EV saw the thread, promptly burst into tears, and said “fine, I’m taking my marbles and going home, YOU’RE MISREPRESENTING ME AND HURT MY FEELINGS BOO HOO,” never thereafter to post again. Which, I’m not holding my breath till he does. but even if he did: that would technically make him well, kind of whiny and pathetic. I’m sure his defenders weren’t intending to imply *that.*

168

Brett Bellmore 05.08.06 at 3:57 pm

“So Brett, your opinion is that no matter what EV says, he is entitled to a respectful hearing?”

Yeah, basicly, or else the left is gonna have to get used to being shouted down as monsterous a lot. (Because there IS an awful lot of leftism which is monsterous indeed from other perspectives.) I find it remarkable that after losing control of the House, the Senate, and the Presidency, and watching the Judiciary gradually slipping out of your hands, the left is STILL interested in forging weapons which could be seized and used againt it.

If you still harbor any hope of converting people by rational argument, do not rush to craft an excuse that can be used to END rational argument. For the argments that will be ended are your own.

169

Barbar 05.08.06 at 4:37 pm

So Brett, bullshit detectors are a grave threat to democracy and freedom.

(helicopters are whirring in the background…)

170

Brett Bellmore 05.08.06 at 4:47 pm

No, but what you do with one can be.

171

piny 05.08.06 at 5:13 pm

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.

Feminists, liberals, and progressives have been discussing it and theorizing about it for decades, with way better results than Volokh’s. There are plenty of clearly articulated theories out there. I get the sense that a bunch of the people on this thread–Belle Waring included–are already familiar with them, and don’t feel like retreading them for the benefit of willful ignoramuses like Volokh. That’s yet another reason why Volokh’s off-kilter reading is so inexusably daft; the “secret arousal” theory has been raised and resolved. It’s not a hypothetical issue for most women, and they’ve been pretty articulate about why they don’t enjoy getting groped on the bus.

The same thing will probably happen when he posts about how the real reason women worry about abortion becoming illegal is that they’re afraid they’ll want to be mothers after all. Off the top of your head, can you come up with any potential counter-theorists and counter-theories yourself?

172

Mickle 05.08.06 at 5:21 pm

“So Brett, your opinion is that no matter what EV says, he is entitled to a respectful hearing?”

“Yeah, basicly”

I disagree. While I get annoyed myself when people don’t listen to reason, I think that part of free speech means not only being able to speak, but being able to hear; and part of having a right to do something means having a right not to do something.

What you are talking about with people being shouted down is just the same old “tyranny of the majority” rearing it’s ugly head. We need safeguards for this, and allowing a certain amount of idioitic speech is necessary for this, but being able to say that such ideas are just plain idiotics is a safeguard against this as well.

It’s not as if this is a minority opinion he’s arguing, after all, that’s why it’s pissing so many of us off. It’s just a variation of the kinds of arguments that are used to blame rape victims for their own rapes.

173

Doctor Slack 05.08.06 at 5:42 pm

Brett: I find it remarkable that after losing control of the House, the Senate, and the Presidency, and watching the Judiciary gradually slipping out of your hands,

Come on, man, you’re smarter than this. If you’re trying to argue for greater civility, it’s extremely silly to be ranting about recent Dem electoral defeats which were largely a result of over-commitment to “civility” against the kind of foe that willingly used the Swift Boat Veterans for “Truth” to win elections. There are cases to be made for greater civility, but “Golly! You’ll never beat the Republicans if you keep being this uncouth!” is not one of them.

174

Barry 05.08.06 at 6:48 pm

Doctor slack, he’s smarter, but not honest – that’s the problem. Apparently free speech must be exercised carefully, lest it become oppression.

175

Barbar 05.08.06 at 7:21 pm

Give Brett a break — he just sees politics as a sublimated war between liberals and conservatives. There can be only one victor, and liberals may win some battles but then they are creating conditions for their future defeat. Lakoff would have a field day with him.

176

Raw Data 05.08.06 at 9:15 pm

“..what does it take for you to consider a writer/commentator beyond the bounds of discourse.”

A great deal. And EV didn’t even come close.

But you are, Citizen k. You are obviously “beyond the bounds of discourse.” You are obviously a fascist pig, probably a sex pervert to boot, who wishes to limit free speech. I have no doubt you get your orders straight from Karl Rove and your goal is to reverse any gains made by women and people of color. And animals, too. (I bet you eat meat!) The very fact that you could even ASK such a question indicates immorality, basic mental perversion and hatred of democracy!

OK. I am just joking. You are probably a very nice person. Maybe even a liberal. But someone could easily read your question (“Are there are any _ideas_ which should not be discussed?”) and see you as a fascist pig threatening our liberties.

Yours is a legitimate question and it deserves a rational answer (such as “When the person is advocating an idea or action such murder of specific persons.”)

If I had read EV as _advocating_ anything, much less advocating rape, whcih is what I believe a few people here have suggested, I would have been shocked and offended. At least. But I read him to be asking simply “Why are we more shocked by unwanted touching of sexual parts than we are shocked by unwanted touching of an arm?”

In some ways the answer is obvious. It’s private! It’s an intimate intrusion! That was my first reaction and I tossed off his question as silly over-intellectualizing. But it’s actually a fair question. (Again, assuming I understood correctly his poorly-written post.) It may in fact be easily answered and the very asking of it shows his ignorance. But maybe not.

Since, as I wrote earlier, one of the purposes (I think) of the women’s movement has been to de-sexualize rape and make it into a crime of violence, I think his question has value. And to the women’s movement specifically. Maybe such de-sexualizing of rape is not correct? Maybe the taboos and embarassment about rape are reasonable? (And men do get raped, so it’s not just a women’s issue.)

EV’s answer is, I think, weak. I am not trying to defend it. But so what? He was not advocating violence against anyone. He was asking a question — “And sometimes a question is simply a question.” — and I am amazed that so many people think he has exceeded some bounds of propriety.

177

Another Damned Medievalist 05.08.06 at 9:54 pm

Since it hasn’t been said in a while, I think it needs repeating — “the Fuck??”

So if I’m raped and I have an orgasm, I’m upset because I had the orgasm? Damned rapist! You made me come! If some cretin pushes me up against a wall and starts rubbing my nipples and they get hard, that’s why I’m upset, and not because somebody violated my rights to my own body (not to mention actually violating my body) and my consent to use it as I wish? Um, I think not. Really. Although if Volokh is right, men can never be raped …

Oh, did I say EV was a tool? ‘cos I meant to.

178

Michael Bérubé 05.08.06 at 11:36 pm

I am amazed that so many people think he has exceeded some bounds of propriety.

Wow! You’re amazed! That’s amazing. But I’m really amazed that you’re amazed. And I was even more amazed by your foolish response in comment 163, which somehow managed to ignore the fact that I drew attention to two of Volokh’s most remarkably stupid ideas.

Now, on this here occasion, Volokh, who is apparently a very nice guy, as if that’s relevant, has suggested that unwanted sexual touching “might in fact be disturbing partly because of the arousal, or of the possibility of arousal.” You call this answer “weak.” I honestly think it’s so jawdroppingly dumb that it doesn’t merit a serious rebuttal. Some “ideas,” like this one, merit ridicule. Civil, decent, respectful ridicule, of course. Not that horrid hostile stuff one finds in the Fever Swamp, which, as has been sagely pointed out in this very thread, is responsible for Max Cleland’s electoral defeat and the decline of the Democrat Party.

179

Raw Data 05.09.06 at 12:39 am

Berube,
What’s your point?

180

MT 05.09.06 at 2:14 am

“who is apparently a very nice guy, as if that’s relevant”

Of course it’s relevant, since what’s going on here is mostly couched in a way that makes the “ridicule” (not to mention hate speech) sound very personal, and that makes this thread especially sad to seemingly many more people than just me. This guy Volokh is not running for office, and the post in question is not his platform. He’s not a shock jock broadcasting on the one station in town either. He’s a college professor with a Web site writing under his own name. Odds are he’s out to shock, and so if he does shock, there’s probably a misunderstanding going on. I can’t think of a better way to keep sexual harassment and rape undiscussed and taboo than to light into somebody on mass for a bad idea, especially one that seems likely to have been offered more in a spirit of inquiry than indoctrination or denigration.

181

MT 05.09.06 at 2:16 am

“Odds are he’s NOT out to shock” I meant to write. Whoops.

182

Lanoire 05.09.06 at 2:47 am

Read the whole thread of comments.

I did. Not a single call for silencing in it.

A great number of the comments are extremely personally hostile to EV and skip over his ideas to attack him.

So? That’s part of the grand old tradition of free speech, right there. Calling Volokh a douchebag isn’t the same as saying he should be silence.

You know, even if fear of unwanted touching did have to do with fear of sexual arousal, is that supposed to mitigate it? People have the right not to be forced into a sexually aroused state. And hasn’t Volokh heard of the concepts of “personal space” and “bodily integrity” and “dignity”? Apparently. not.


What’s your point?

I’m not Berube, but it looks like his point was that Volokh was an ignorant ass who knew nothing about sexual harassment and should be laughed at. A fair point indeed.

183

rollo 05.09.06 at 3:47 am

Sexual pathology is system-wide. It’s infected Volokh, and Belle, and all the rest of us. Different kinds and degrees can give us the comparative illusion of health in our own versions.
Using the particularly obvious sickness of someone like Volokh to shore up the boundaries of your own in contrast is tempting, and, as evidenced here, it happens a lot.
Some of the weirdness around arousal as mitigating factor comes from the same place as in those who would say someone who willingly performs debilitating labor out of desperation and hunger can’t possibly be considered a slave.
Which is true, as long as slavery’s being tightly defined as forced and unremunerated labor.
A landlord getting monthly head from a desperate single mom isn’t raping her, in a legal or medical sense, but he is committing an immoral act.
The power dynamic shades out in a continuum, from rape through that kind of coercion, to the way we court and select our mates.
No bright line – just squalid horror at one end and life as we know it at the other. The path toward sexual health is uphill, through a battlefield of privilege and resistance that’s about a lot more than just sex.
Praise to Belle for bringing her sad credentials to the struggle.

184

Brett Bellmore 05.09.06 at 4:59 am

“recent Dem electoral defeats which were largely a result of over-commitment to “civility””

Whoa! You actually think that????

“There are cases to be made for greater civility, but “Golly! You’ll never beat the Republicans if you keep being this uncouth!” is not one of them.”

Good thing I wasn’t arguing that.

Look, you think you’re right, and that there are good arguments for your positions. Your opponent has a megaphone. Why the heck are you trying to establish that shouting people down instead of using rational arguments is appropriate?

Because you think that only your side is capable of getting outraged by an idea they don’t like, and shouting? Maybe because you actually think YOU are louder?

I think maybe you’re not so sure your arguments are really better.

185

citizen k 05.09.06 at 8:39 am

Rad data: EV supports torture, finds much to admire in the Iranian “justice” system, and “wonders” if the motivation for laws against sexual assault are motivated by fear of unwanted arousal in the victim. Belle’s insistence that he must be a nice guy and yours that his vile propaganda deserves respectful consideration don’t move me. Rational discussion of politics requires a shared moral basis and some reason to believe that the other party is commited to rational discussion. I don’t share EV’s S&M authoritarian morality or believe that he is anything but a propagandist for authoritarianism. So he can go and sexually arouse himself with a flying donut.

186

Raw Data 05.09.06 at 8:53 am

Citizen K.
Not good enough.Too much rhetoric and posturing. Go back and try again.

187

Raw Data 05.09.06 at 9:15 am

Belle,
You wrote that Thomas comment was “inappropriate.”

(“…if you really think this is an appropriate response to a woman who just said in a very public forum that she has been the victim of rape and sexual assault…”)

How does having been raped give you any veto/proscription over public comment? This is a key question because it goes to social attitudes toward rape, which are of course at the heart of your posts.

So is there a legitimate “rape card” which a woman (or man, for that matter) can use to shape public discussion, as you have tried to do here with Thomas? Kind of a warning shot across the bows of all male non-rape victims not to make certain kinds of remarks?

188

Doctor Slack 05.09.06 at 9:26 am

Brett: Whoa! You actually think that????

Whoa! Yeah! Do you have an actual argument as to why I shouldn’t? One that doesn’t involve complaining how much more terrible Michael Moore is than Fox News, the Swift Boaters, the right-wing blogosphere and the bulk of the sitting Administration?

Why the heck are you trying to establish that shouting people down instead of using rational arguments is appropriate?

Why the heck are you trying to pretend I did any such thing? All I said to you is that bringing up electoral politics is a stupid way to make the point. In point of fact, one could argue that some people’s willingness to turn away from “civility” — most of the Democratic establishment excepted, of course — correlates strongly with the collapse in Bush’s approval ratings, providing at least circumstantial evidence that incivility is not all that much of a political liability. (That’s if the political success of the Right’s abandonment of civility hadn’t already taught us that lesson.)

You can make the case for civil discourse, but you can’t do it by pretending that the Republicans won their political victories by honest argument and that the Dems will be Inevitably Crushed if they don’t do the same. That will not do. That is not honest. It’s looking to me like Barry is right.

I think maybe you’re not so sure your arguments are really better.

Really? What do you think “my” arguments are? I think maybe you’re not so sure you even know.

adm: So if I’m raped and I have an orgasm, I’m upset because I had the orgasm?

Dealing with the shame, confusion and damaging psychological stress resulting from involuntary physiological responses during rape is a standard part of clinical treatment of survivors, as noted by this WHO guide to clinical management — though in North America the problem is most often foregrounded in reference to male survivors.

Of course it’s right to object to EV’s attempt to overemphasize the issue as a basis of law — which even he eventually recognized — and I really don’t blame those who suspect his good faith given his past record of bizarre and even vicious pronouncements. But it’s genuinely troubling that EV is becoming an excuse for some people to downplay this problem as somehow obviously freakish and self-evidently not worth talking about. I think Thomas subsequently proved himself off-target in trying to identify Belle as a source of this sentiment per se, but I don’t think he’s wrong to identify this kind of sentiment as a trap, and one that is objectionable.

189

Michael Bérubé 05.09.06 at 10:51 am

Berube, What’s your point?

Sorry not to have been clear about this. I think it was “some ‘ideas,’ like this one, merit ridicule.”

190

Raw Data 05.09.06 at 12:26 pm

Fine, Berube. Ridicule EV’s ideas.

It’s the intense hatred of EV which is so weird.

•••

I have never taken the right-wing claims about “intolerant PC liberals” as accurate — being a liberal myself — and have always mocked those claims.

I was wrong.

191

Michael Bérubé 05.09.06 at 12:42 pm

I used to be a liberal, too. But after 9/11, I’m really outraged by people who ridicule the idea that unwanted sexual touching might in fact be disturbing partly because of the arousal, or of the possibility of arousal. It’s the irrational hatred that gets me.

192

Kalkin 05.09.06 at 12:52 pm

Citizen K.
Not good enough.Too much rhetoric and posturing. Go back and try again.

A comment which is itself, of course, quite literally nothing but the adoption of a detached rhetorical posture.

193

Doctor Slack 05.09.06 at 1:02 pm

It’s the intense hatred of EV which is so weird.

You think intense hatred of a guy who makes excuses for torture and admires the barbarities of Iran’s justice system is weird?

I myself don’t subscribe to the dislike mostly because I don’t think the guy is worth it, but is it really so hard to understand it, and that it might just bleed over into other contexts (even when what he’s saying is just wrong instead of actively vicious)?

194

Uncle Kvetch 05.09.06 at 1:25 pm

I have never taken the right-wing claims about “intolerant PC liberals” as accurate—being a liberal myself—and have always mocked those claims. I was wrong.

Mmm-hmm. And now you’ve come to realize that you haven’t left the liberals–they’ve left you! And the time has come for you to bid your farewell–more in sorrow than in anger, of course–to your erstwhile comrades, and to ally yourself with the only truly honest and decent intellectuals left: viz., the ones who come up with things like “a libertarian case for torture.”

195

citizen k 05.09.06 at 3:31 pm

Since we are in a confessional mode, I’ve until recently never accepted the common theory that Republicans are blood sucking vampires risen from the grave. It’s not that I’ve left the undead, they’ve left me. I’ve was a post-life long Republican, but the ideals of those early days in the crypt are being tossed aside by the extremists – who are literally shoving a wooden spike into the moderate wing of the party.

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Brett Bellmore 05.09.06 at 4:51 pm

Doc, I seem to be having a difficult time getting my point across to you, so I’ll rephrase this:

1. Republicans have most of the power, regardless of how they got it. How they got it is NOT an element of the argument I’m making.

2. You think you have reason on your side. Whether you’re right about this is NOT an element of the argument I’m making.

Why would you want to make who wins arguments a matter of power, rather than reason? Because that IS what you’re doing, when you reject civil argument as a response to civil argument. Because, in the end, power IS the only alternative to reason.

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Doctor Slack 05.09.06 at 5:08 pm

Why would you want to make who wins arguments a matter of power, rather than reason?

Ummm, how can it be lost on you that I haven’t argued this?

What I’m saying is that if you want all that awful incivility to go away, you are going about it the wrong way. This is not necessarily an endorsement of the so-called “incivility” itself (which, for me, runs the gamut from genuinely enlightened and useful rhetorical horseplay to stupid and off-target kneejerking, and all points between).

How they got it is NOT an element of the argument I’m making.

It kind of is, Brett, because it’s the answer to the question you purport to be asking. Why might someone want to make who wins arguments a matter of power? (The word you’re looking for is “polemic.”) Provided the persons you’re talking about are in fact doing so, the answer is obviously because it has been shown to work as a means of getting power (and of undermining the power of others). Trying to tell them that the tactic will doom them to not getting power is, therefore, silly. It will not persuade anyone.

A better case for civility can be made along the lines that if all parts of the American political spectrum morph into imitations of movementarianism’s more-or-less total lack of rhetorical restraint, your country is basically screwed. This, of course, would require you to abandon a condescending lecutring-to-“the Left” attitude, but you’re not trying to cop such an attitude anyway, right? So no worries.

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belledame222 05.10.06 at 2:17 am

So I’m wondering: could it be that the real reason we have stoplights is because pedestrians are afraid they’ll enjoy their hospital stay too much if they got hit by a car? Then they’ll never leave the hospital, and the bills will rack up, and they’ll lose their jobs, and *maybe that’s what they really wanted all along, an excuse to sit on their ass and eat red Jell-O at taxpayer expense.*, and THAT’S why we have traffic lights.

I’m just putting it out there.

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belledame222 05.10.06 at 2:24 am

Proposal: sanitation regulations were created because people are afraid that they might get to enjoy dirt and disease too much; and secretly yearn to eat ground up vermin. Discuss.

also:

Laws against stealing are on the books because deep down, there is this fear that it would be a relief to be unburdened of our property. Before you knew it, we’d all be tripping over ourselves in our haste to give away all our money and property to the indigent; and before you could say “Dennis Moore” we’d all be living in a communistic anarchy. Talk amongst yourselves.

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