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.???