I sympathize with the commenters who affected shock, but I really am quite convinced that Eugene Volokh is a nice, intelligent person whom, if I met him in real life, I would like. This may be based on class solidarity. He is a smarty-pants law professor, and I like smarty-pants law professors. I happen to know two other former Supreme Court clerks living in Southern California who are nominal Republicans (these people also know Prof. Volokh and vouch for his character). Despite being Republicans, they are both nice people, and not just in the “he always seemed like such a nice boy” fashion of the opinion of the serial killer’s elderly neighbor, but the real-life type of nice person.
Now, I say this in the full knowledge that Eugene Volokh holds all sorts of views on many topics with which I completely disagree. Furthermore, since some of these views concern matters of serious moral import, I would seem to be pretty well committed to the idea that he is, in some sense, a bad person. But, in real life, we share polite aquaintanceship with all sorts of people who think all kinds of wrong and crazy stuff. We just don’t usually have to hear about those crazy things. At a party we will edge away from the crazy “let me tell you about my views on minarchy RIGHT NOW” guy. Then again, we might have a great time discussing the latest Italian election results, say, or poor draft choices recently made in the NFL, with someone who was, in fact, a crazy minarchist, but who didn’t go out of his way to tell you about it. Unfortunately, the blogosphere is like an extended drunken party in which the probability of you having to hear the crazy minarchist’s theories about government asymptotically approaches 1. But while it’s appropriate to get into high dudgeon if one of the Catallarchy guys (maybe they’re actually anarchists, but never mind) says something you find morally repugnant, it isn’t necessarily a good idea to start picturing him to yourself as some sort of moral monster, slavering away in a basement. (Unless it’s Captain Ed, in which case, go right along.) Finally, Eugene Volokh himself seems to have seen at least some of the light on this point, though he should probably unwrap the gauze strips currently encircling his head all the way, even if the brightness may be painful at first; read his update which includes the following bolded passage:
On reflection, though, I think I probably overstated the importance of this factor as to unwanted touching, and understated the importance of the other factor that I mentioned: “the likelihood that the other person is deriving some sort of sexual arousal from touching you.”
Slapping your forehead really hard may provide a helpful sound effect to this quote. All that said, let me just review a few things slowly and carefully:
1. The original post specifically concerned unwanted touching. Not public masturbation per se, or people having sex in public (these topics were addressed in surounding posts.) No, unwanted touching, falling short of simple battery, which could be divided into two classes: unwanted touching on the arm or other neutral body part, or unwanted touching of a person’s genitals, ass etc. Then we proceeded to have a big wondering wonderment as to why the latter type might be punished by law rather than (or more harshly than) the former. That’s just a stupid thing to wonder about. Why? Not because of the atavistic adherence to taboo which might be supposed to animate some of the dissenters on the “why is public nudity bad” thread. No, it’s worse because there is such a thing as sexual assault in this world, and grabbing someone’s dick all of a sudden in a public place is quite evidently one end of a spectrum of unpleasant interactions, at the other end of which is forcible rape. Tapping someone on the shoulder, even if he is the hating-getting-tapped-on-the-shoulder-est person EVAR? Not so much. See? Post over. Oh, wait…
2. It’s just not historically the case that concerns of this type (i.e., concerns about unwanted sexual arousal in the victim) have ever informed our lawmaking or understanding of the laws against getting groped by a stranger. Should they? No. Let me turn into Ms. Law-Talking-Chick…
3. There’s such a thing as mens rea in this crazy world we live in. (I’m a Platonist, so I get to say this type of thing. If you disagree you work it out with your fancy shared linguistic norms and verificationism or whatever, hippie.) The intentions of the accused criminal are often of paramount importance in his fate in the mighty hands of the law. And so, laws against this type of behavior quite sensibly focus on the fact that the assailant is doing this thing in order to sexually gratify himself. Thus, although touching someone’s toes or feet is not usually regarded as sexual in nature, a man who accosts women and touches or licks their feet should be prosecuted as a sexual assailant. I’ve actually had this happen to me on the street in New York! I had fallen prey to the open-toed sandals with bare legs in winter trend. I kicked him in the head really hard and he fell into a gutter full of slush. Most gratifying. (Let’s just set aside the delusional schizophrenic or railroad-spike accident victim who genuinely believes that slapping someone on the thigh with his penis is the appropriate thing to do on meeting someone, OK? Because I’m making dinner.)
4. It would be not just unwieldy but improper for the laws to derive their force from a consideration of the victim’s potential sexual arousal. If there is someone who achieves inexpressible sexual gratification [stipulatively muted] from shaking hands with people whom she meets, should we charge her new aquaintances with sexual assault? No. [Conversely, if there is a man for whom being tapped on the shoulder brings back memories of past sexual abuse so painful that he experiences this ordinary contact as tantamount to assault, should we arrest someone who taps him on the shoulder? No. Though harm to the victim is certainly a concern, extraordinarily non-standard harms fail the mens rea test; the “assailant” had no way of knowing and no reason to believe such a thing would be experienced as assault, and had no intention of sexually gratifying himself in this way. We may feel sympathy for this person, but we would never bring his toucher to court.]
5. It shows an extraordinary blindness to the actual reality of women’s lives to focus on the unwanted sexual arousal aspect of unwanted touching at the expense of the forced assistance in sexual gratification aspect. Really, really blind. I invite male CT readers to just go around and start asking women they know if anyone has ever felt them up on public transit, or in a crowded mall, or a bar. I’m waiting. What, all of them?! That almost sounds like a serious societal problem we should do something about! Something like…embracing feminism (Now balloons and confetti are meant to come down from the ceiling). Many young men are also victimized by this type of thing, and the awesome thing about feminism is that it’s also opposed to sexual violence against men, be it on the bus or in our poorly-run jails. Such violence almost always turns on the hinge of “feminizing” some men and thus making them sexually fair game.
5a. The mitigating factor, if so it be, for EV is that he is a man accustomed only to thinking about the problems and experiences of men. Men, and especially young men, certainly can experience involuntary sexual arousal, even in situations in which they are coerced or ashamed. This in no way excuses anyone who would victimize them, and should not cause them any shame on reflection. Reducing the stigma attached to being a victim of sexual assault would be a great idea. So great, that it already has a name…feminism! It is my sense that involuntary sexual arousal of this type is much rarer among women. However, rare or common, it should be neither a source of shame to victims nor a false solace to attackers. Which brings us to…
6. Ironically for a series of posts concerned with the boundaries of public displays of private sexual behavior, the disturbing thing about EV’s post was that I felt I was getting a window into his mind that I really, really didn’t want to look into. Somebody close the drapes up in here! The possibility that a victim—of anything from groping to outright rape—secretly wants it or secretly enjoys it, even if she can’t admit it to herself, is a staple of violent fantasies about rape and sexual domination. There was a strip club in Tokyo a few years back all kitted out like a real subway car, where men could go to feel up women dressed as schoolgirls. Let’s all meditate on that a moment. (This is not meant to single out Japanese men for opprobrium; it is just a perfect crystallization of this pernicious idea.)
Finally, this brings us to Thomas in comments below:
I’m sure the appropriate response to these posts [from a feminist site detailing how the victims of sexual assault may be re-victimized by shame over their own involuntary physical arousal] 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.
Thomas, 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, then…your mother didn’t raise you right. Also, you are a worthless excuse for a human being.