You Know How When People Explain Jokes, They’re Not Funny? OK, But This One Clueless Libertarian Got On The Subway, And…

by Belle Waring on May 7, 2006

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.

{ 114 comments }

1

Russell Arben Fox 05.08.06 at 6:57 am

Absolutely fabulous, Belle. You’ve taken EV completely apart in this response–carefully, thoughtfully, and passionately. I rarely have hopes of this sort for blog discussions, but in this case, I find myself really and truly hoping that EV will read this response of yours, and learn.

I should add that I agree with everything you say, and that I’m delighted to hear that you’re a Platonist. (So am I, in a hermeneutic sort of way.) My one quibble would be to suggest that citing an “atavistic adherence to taboos” really isn’t necessarily that bad of an argument against something. Taboos, like all traditions, often play an important role in preserving civilized society. Among other things, when adhered to, they often help guarantee that people like EV won’t casually open up “a window into [their] mind” which no right thinking person ought to want to, as you put it, look in to.

2

Laura 05.08.06 at 6:59 am

I don’t know, Belle. I don’t think he backed down enough. He still thinks that the victim might be turned on the by the act, while at the same being grossed out by the facts that the other guys is turned on more and that it was nonconsensual. I can assure Mr Volokh that the time that I was pinned into my bus seat by a scumbag who touched me, I was not turned on at all. Violently revolted might be an understatement.

3

Belle Waring 05.08.06 at 7:02 am

I agree that he didn’t back down enough. hence my suggestion that he take the blinders all the way off.

4

Cranky Observer 05.08.06 at 7:09 am

I would guess that anyone reading and/or posting to this web site has had at least one question of the form “you are in a locked room with a gun pointed at you”-type question / morality puzzles posed to them. That type of question and the discussion it provokes is thought-provoking and useful, and there is nothing wrong with it. Particularly when there is no chance of the actual situation arising.

But the problem for me is that these Radical Republican blog-philosophers (“libertarian” = Radical Republican who wants to have sex with liberal women) is that they just happen, just by sheer coincidence, to repeatdly come up with puzzle questions which involve or lead to the brutalization and subjegation of women. Again and again and again.

And Volokh isn’t just a blog philosopher: he is a professor of law and a former lawyer. Which means his beer-hall speculation isn’t just speculation: it has the potential to influence the thinking and direction of future generations of lawyers. Some of whom will become judges and politicians.

With the Radicals moving into the second phase of their war on sex (and its undertow, the war on sexual enjoyment by women), I don’t think it is wrong to speculate on the underlying motives of a Radical professor of law who brings up these kinds of “thought puzzles” again and again. Nor to criticize those motives.

Cranky

5

norbizness 05.08.06 at 8:16 am

“He is a smarty-pants law professor, and I like smarty-pants law professors.” I had no idea such people existed, but then again the Internet is broadening my horizons on a daily basis.

6

Cala 05.08.06 at 8:31 am

EV’s post reminded me of a freshman, who has just heard about consequentialism, trying to justify all manner of moral transgressions by finding the weirdest justifications possible, in order to show how smart he is. (‘The principle of harm prevents me from being rude, because if I were to be rude, then my voice would be louder, and that might damage your hearing, thereby doing you harm! And that’s what the founding fathers meant!’)

7

ben alpers 05.08.06 at 8:33 am

What, if anything, is the moral significance of the fact that you (or, for that matter, I) might easily get along with EV in “real life”?

There are plenty of personable moral monsters. Marianna Torgovnick in her interesting meditation on the memory of World War II, The War Complex, writes about how Albert Speer, among the major Nazis, had such a quick and easy ride to the top and seemed so relatively attractive to post-war, anti-Nazi audiences. Central to Speers’ success with both Nazis and anti-Nazis, Torgovnick argues, is class. Speer was from a good background, was smooth, smart and personable. Utterly unlike Eichmann, Goering and most of the other leading Nazis. But that oughtn’t confer any moral advantage to him.

Now before Godwin comes after me, I’m not comparing EV to a Nazi. I am arguing that he’s not one iota superior to Ann Coulter or any of the less couth proponents of torture in American life today, even if I’d likely much prefer having a beer with him than with them. (I’m also not suggesting that Belle is arguing for EV’s likability as a morally mitigating factor…I’m just a bit puzzled by why she places such emphasis on it in this post.)

8

Christopher M 05.08.06 at 8:38 am

Right on.

One small question (while trying to emphasize its smallness in comparison to the overall massive rightness of absolutely everything you just said): is it possible that one reason Volokh and others think that women are often aroused by sexual assault is that a substantial number of women do, at times, have some variation on a rape fantasy, which actually is sexually arousing (among other things–maybe also shameful, etc.) and maybe Volokh has picked up on that but somehow fails to realize that lots of things that are arousing in fantasy would be absolutely repulsive and traumatic in reality? My understanding (could be wrong) is that victim-perspective rape fantasies aren’t uncommon. (Of course, whether they’re the product of bad, gendered socialization, etc. is another question.)

9

Atrios 05.08.06 at 8:39 am

Yes, I am also puzzled by the emphasis on potential likeability. I’ve enjoyed having a beer with all kinds of people but I don’t feel the need to reassure the world that it’s quite possible I’d really enjoy having that beer with torture advocates.

10

Uncle Kvetch 05.08.06 at 8:47 am

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.

I’m sorry, but how is a complete inability (or unwillingness) to consider the experiences or feelings of someone different from oneself a mitigating factor?

I have to say that I had a much higher opinion of law professors before I discovered the blogosphere. Between EV, Althouse, and Glenn Reynolds, I find myself wondering whether creepiness is considered a bug or a feature in that profession.

11

RS 05.08.06 at 9:34 am

Ah the ‘good chap’ theory of moral character. “That Mosley fellow is quite the charmer, just don’t get him started on the jews”. How outrageously middle class of you.

12

Raw Data 05.08.06 at 9:39 am

You guys really want to make it personal, don’t you. Belle comes out with a nice post, impressively cerebral, and what do you folks do but turn it back to personal attack on EV.

•••

Btw, 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 over public comment?

Obviously we are all sorry. It’s a shocking thing to read such a disclosure; at least it shocked me. But what right does it give you to limit the extent of discussion?

It seems to me that the whole attempt of the women’s movement has been to de-sexualize rape and show it as crime of power which can be discussed without taboo, as a man would describe being mugged. So why the special privilege in this case?

And I didn’t quite get what was offensive in his remark; maybe I missed it. But even if it had been “offensive,” so what? This blog and its comments are full of offensive post and comments to someone.

13

Dæn 05.08.06 at 9:45 am

I have to say that I had a much higher opinion of law professors before I discovered the blogosphere. Between EV, Althouse, and Glenn Reynolds, I find myself wondering whether creepiness is considered a bug or a feature in that profession.

Don’t cast aspersions on the profession per se; it may just be an artifact of the medium. I’ve noticed that blogging sometimes elicits rather sloppy patterns of reasoning in (some) individuals who are used to the intellectual safeguards of peer review and personal reflection.

Present company excepted, of course.

14

eudoxis 05.08.06 at 9:53 am

I don’t buy Belle’s argument altogether. At least not her reasonable argument. I have the impression that what Eugene is getting at is the question of where the harm is along the spectrum of touching to not touching by persons (attackers?)who are sexually aroused by the object. It’s easy to direct the argument along to the other end of the spectrum and say that extremely invasive touching is rape and damaging and women don’t enjoy it and everyone agrees with you and let’s pile on EV. But you can’t make that argument without introducing violence. But where is the harm to an individual (victim) who is the the object of someone’s fantasies with exposure or lewd behavior on the subway, or the sidewalk behind the bus stop? And where is the harm to the individuals who are the object of the exhibitionist couple’s desire to have sex in public? The spectrum of discomfort for the (victim) does not begin at the moment the (perpetrator) crosses the touching boundary.

There is also more than a grain of truth in the comments by “Thomas” when he says that consent and physical arousal are not inextricably linked. There can be a disconnect between consent/enjoyment and arousal, even for women. This is far different than the sick fantasy that women secretly want to be raped.

Unwanted sexual advances touch people in an emotional and personal way that is more memorable and more damaging than benign physical contact because it is sexual in nature. Not just because someone else is getting sexual gratification from it.

15

Russell L. Carter 05.08.06 at 10:00 am

“I’ve noticed that blogging sometimes elicits rather sloppy patterns of reasoning in (some) individuals who are used to the intellectual safeguards of peer review and personal reflection.”

EV had to have Mark Kleiman explain to him the quite elementary reasons why torture is a bad thing. Sloppy is not in it. As Belle says, he’s got his head thoroughly wrapped up in a gauze bandage. Unlike her, I think it’s a good thing that it’s on display for all to see.

16

George Williams 05.08.06 at 10:02 am

Re: puzzlement over evaluation of likeability.

It’s not that hard to figure out. So many of the comments in the previous thread emphasized how unseemly the personal attacks on Volokh are. Belle is just emphasizing that she is not responding to Volokh’s person, just to his argument and its underlying assumptions.

17

what 05.08.06 at 10:42 am

if you’re referring to the Thomas who is a regular commenter at CT–

what took you so long to figure out that he is a despicable moral monster, and an apologist for every form of right-wing evil?

Most of us got it on his first post.

18

Anthony Baxter 05.08.06 at 10:45 am

I never really appreciated how bad this was until I had long hair. It was quite long and (apparently) quite feminine hair. I’m also quite slim, and I can understand how from behind I’d have been mistaken for a female. On a number of occasions I’d be at a bar, waiting to order drinks, and I’d feel a hand fondling my backside.

In most cases[1] it would be some absolute full-of-himself boy who’d seen someone he assumed was female, and had just gone the fondle. My general response was to say “Oh, I’m sorry, was I in your way?”. On a couple of occasions I almost got bashed with a “what are you, some sort of faggot?”

Discretion and a basic dislike of violence would hold back my response of “Um – you grabbed my arse, you homobigoted fuckstick”. But none the less, it was deeply unpleasant. On one occasion, I had to be rescued by workmates from an imminent beating.

It also made me very aware of just how often this happens. I talked to a number of female friends who were more-or-less just resigned to this situation occurring on a regular basis. It was somewhat eye-opening. Personally, I’d consider a t-shirt saying “unwanted touching may result in me kicking you in the balls” (or similar sentiments, expressed more pithily)

Say no to the random groping of people you don’t know. While saying “what the hell, it’s fun!” to the random groping of people you know and love.

[1] Pure brutal honesty compels me to admit that sometime it would be a female friend[2] just going the grope because it amused her.

[2] And yes, unwanted touching of a boy by some random female of a guy is just as bad as unwanted touching of a girl by a random male. But when it’s someone you know just being cheeky, that’s just fun flirting.

19

Iron Lungfish 05.08.06 at 11:03 am

Again, I wonder why Volokh gets special privelege in this area over, say, Glenn Reynolds, who has been known to employ similar “I wonder” rhetoric to endorse and defend vile ideas ranging from torture to invasion and mass slaughter to government suppression of dissenting speech. Is it somehow obvious to all concerned that Eugene Volokh is a super-swell guy in person while Reynolds is a total dick? It’s not obvious to me at least, but Belle is super-careful to note that she thinks Eugene is a nice guy while Instapundit is a wanker.

There’s a reason I dwell on this, and that’s because I think Belle’s first response was the correct response. You don’t respond to morally autistic arguments with reasonable explanations of why Crazy Fucker X is wrong; that elevates the crazy fucker’s craziness to a level of respectability it simply doesn’t deserve. We respond to people like Charles Johnson and John Hinderaker with ridicule because that’s what their ideas merit – no matter how charming they may be in person. A better vocabulary doesn’t make a better idea, I don’t think.

20

marcel 05.08.06 at 11:04 am

Are we having fun yet, Belle?

I haven’t read EV, stopped very shortly after I started, more than a couple of years ago, so… but after your dismantling, I doubt that he could be remantled. No violence, you broke no pieces taking him apart, but the floor is littered with with thousands of tiny items and I don’t think any of us could figure out how to put them back together again. Like Humpty Dumpty without the effects of a sudden blow from falling, but rather those of a patient, methodical effort.

21

abb1 05.08.06 at 11:34 am

Class solidarity! I like that!

Lawyers Of The World, Unite!

Let us build bright minarchical future together, brothers and sisters! Down with the government, up with the lawsuits!

22

MFA 05.08.06 at 11:38 am

Sexual arousal–whether or perpetrator or victim–is at base an unconsious and involuntary response. Touching someone is a concious and voluntary action. This is why one is held responsible for the latter yet neither absolved or convicted by the former. And the only person to hold responsible for the voluntary action is the perpetrator. The law recognizes the difference, even if EV does not.

That he can presume women are at all likely to be aroused by involuntary participation in sexual touching is likely a reflection of either his own desire to be touched inappropriately by strangers or his video rental list.

23

yabonn 05.08.06 at 11:42 am

I never really appreciated how bad this was until I had long hair

I had a conversation about that with females friends of mine some times ago : the long hair seems to be a real, potent, weirdo-magnet.

24

Sebastian Holsclaw 05.08.06 at 11:45 am

“Sexual arousal—whether or perpetrator or victim—is at base an unconsious and involuntary response. Touching someone is a concious and voluntary action. This is why one is held responsible for the latter yet neither absolved or convicted by the former. And the only person to hold responsible for the voluntary action is the perpetrator. The law recognizes the difference, even if EV does not.”

That first sentence is pretty much his whole point. That is why he suggests that some sexually related non-touchings (such as public nudity) can get different treatment when compared to other expressive acts (like flag burning).

25

Gil 05.08.06 at 12:02 pm

I know Eugene and can attest that he’s not only brilliant, but extremely charming. I can’t imagine an intelligent, decent, person who wouldn’t enjoy his company.

It’s easy to limit one’s posts to views that everybody knows are true. I think it’s good that Eugene is willing to blog about things he’s not sure about and to explore tentative ideas. By exposing these ideas to criticism we can learn why he might be wrong, and also how shoddy many conventional criticisms actually are. We’re all likely to come away a little smarter.

And, Eugene is quite willing to accept criticism and change his mind when he agrees with the criticsm. That’s more than I can say for most bloggers.

He’s a really, really, really, smart guy who wants to improve his theories and knowledge. Sometimes he’s wrong, but he’s always rational about issues. And, I think he’s right more often than the average CT poster, and MUCH MUCH MUCH more often than the average CT commenter.

Calling him some kind of moral monster, as some have done on these threads, is ridiculous and outrageous. It tells me much more about the writer than about Eugene.

26

rilkefan 05.08.06 at 12:13 pm

“You don’t respond to morally autistic arguments with reasonable explanations”

Probably what the hard-right anti-abortion crowd says about arguments for choice. Or what the Hitchenses of the world said about those opposed to overthrowing a near-genocidal tyrant.

27

abb1 05.08.06 at 12:19 pm

…not only brilliant, but extremely charming…

I agree that nihilism is cool and nihilist lawyer is double-plus cool, but he needs to improve his style a little bit. Nihilistic thought has to be expressed causally.

28

rilkefan 05.08.06 at 12:20 pm

Isn’t Thomas actually right that some non-zero percentage of rape victims feel (amidst the other awful sensations) some sexual arousal, and doesn’t that make the assault even worse, and isn’t this addressed in therapy? And if so isn’t it reasonable to fear sexual arousal during rape as part of the general fear of rape?

And if so isn’t Belle trying to shout down unpleasant truths with “you are a worthless excuse for a human being”?

29

Barry 05.08.06 at 1:36 pm

“It’s easy to limit one’s posts to views that everybody knows are true. I think it’s good that Eugene is willing to blog about things he’s not sure about and to explore tentative ideas. By exposing these ideas to criticism we can learn why he might be wrong, and also how shoddy many conventional criticisms actually are. We’re all likely to come away a little smarter.”

Posted by Gil

Strawman alert! Extinguish all smoking material!

30

99 05.08.06 at 1:56 pm

Why is sexual arousal relevant? I’m certain a non-zero quantity of people like being punched in the face. But I’ve never heard of a police officer pausing to ask an assualt vicitm if they enjoyed their beating before charging the assailant. Or a defense attorney asking how many times a victim has been in a fight before.

There isn’t any fun thought experiment line we need to explore: most people don’t like being punched in the face, and most people don’t like their ass being grabbed.

But if we need to belabor this point any more, I will find a female friend, show her this thread, and see if I can offer her up in the service of the social sciences. I will have EV grab her ass, and she can report if she experiences even the most fleeting sexual arousal (and the concomitant guilt, etc). I will then punch him in the face and he can report if he enjoyed it. We will then come back and report our collective findings.

31

Morat20 05.08.06 at 2:02 pm

Regarding civility: I’d just like to point out that civility is overrated. Sometimes the only rational response is “ARE YOU CRAZY? What sort of moron are you?”.

A civil and rational response merely legitimizes the insanity. I consider conversations about preemptive nuclear strikes, the legitimacy of torture, and the “Asking for it” school of rape-excusal to be among them.

If — just as a useful example — someone grabs your ass on the subway, politely explaining to them the legal consequences of that act, as well as the philosophical roots of those laws, isn’t going to deter their behavior. However, there are certain places on the human body where one can deliver a minimum of force for a very powerful response.

And then you have them arrested. Admittedly, not all victims are capable of doing either, but I understand the fool who tried to fondle my sister-in-laws’ breasts had to have pins in his foot, and will never regain his previous range of hearing.

32

asg 05.08.06 at 2:16 pm

#31: I assume you would disapprove if your sister-in-law had pulled out a pistol and shot “the fool” dead. Just out of curiosity, can you give an idea — ballpark only — of where you think the line between acceptable and unacceptable levels of violent responses to “fondling” lies?

33

Benjamin Rosenbaum 05.08.06 at 2:19 pm

Obviously, I agree 100% with Belle.

I do wonder, though, if the original poster simply didn’t (with, granted, a staggering degree of cluelessness about the way people talk and feel about stuff here in the streets beyond the ivory walls of the Tower of Boy Thought) misspeak. In his update he writes —

“Even if you feel entirely unaroused (neither pleasantly aroused nor, more likely, unpleasantly aroused) by someone caressing your private parts in public, you may feel quite upset by the likelihood — not certainty, but likelihood — that this other person is deriving some arousal from the action, and from your involuntary involvement in the action.”

“Unpleasantly aroused” almost seems to suggest we’re meant to construe “aroused” not to mean “pleasantly sexually stimulated” but in a kind of neurological sense — so that “intense disgust and horror and a visceral feeling of violation unmitigated by any sexual response” counts as a kind of “arousal”.

Thus, pleasant arousal, the kind that makes us horny, would be one end of a spectrum, revulsion and trauma the other end, and feeling unattachedly neutral would be in the middle. Then we’d read the passage as saying, “sexual assault is when you are involuntarily touched either in a way which makes you feel intensely (usually bad, but even good would be bad), or where, even if you remain dispassionate, cool, neutral, and unaffected, it bugs you that your body is being exploited for someone else’s jollies.”

That seems to be the only way you could read the post where it would make any sense. Read that way, it’s actually a pretty reasonable definition. It is, of course, a kind of bizarre semantic violence to read “aroused” that way. But there’s also something very telling about that reading of “aroused”, if it is intended.

In the Tower of Boy Thought, any kind of physical feeling — any assertion by the body of its primacy, in which it has the temerity to occulde the workings of the mind — is a kind of assault. In that Tower the disinction between the good arousal of horniness, and the bad “arousal” of being kicked in the head by a mule or falling into a nest of tarantulas, which for most folks is kinda significant, is secondary.

34

Sebastian Holsclaw 05.08.06 at 2:31 pm

“Why is sexual arousal relevant? I’m certain a non-zero quantity of people like being punched in the face.”

It is relevant because the post in question is in a SERIES about why it does or does not make sense for things like public nudity and public sex are illegal.

35

Thomas 05.08.06 at 2:34 pm

Belle’s rhetorical strategy notwithstanding, I believe the appropriate response to muddled thinking is clear thinking, and I offered that with my last comment.

Belle attempts to correct the mistaken impression she left with her first post with the latest, but, while there’s much I can agree with, she suggests, as the post continues, that she hasn’t realized her error. So above we see Belle admit that an unwanted physical response in women is possible, yet she insists that this additional harm inflicted on these women (by the fact of physical response) is one that the law shouldn’t and doesn’t aim to avoid, without, as I see it, offering any good reasons for that position. Worse, she also immediately links this unwanted physical reaction to the offensive suggestion that some rape or sexual assault victims secretly wanted or secretly enjoyed it, which is to say, she restates her confusion. There’s no reason for the connection she offers, but it is this connection, it seems to me, that is part of the confusion and guilt and anger that these women feel. They’re told that no woman secretly wants or secretly enjoys rape–which is true–and they’re told that this means that no woman has an involuntary sexual response to rape–which isn’t true–and in fact they’re told that these are the same idea. What can they conclude, given that they had an involuntary sexual response? That they must have enjoyed it or wanted it or there must be something wrong with them–they should feel guilty or confused or angry about the involuntary response. Again, I’m not sure why that’s what anyone would want.

All that can be avoided by simply recognizing that saying someone had an involuntary and undesired physical or sexual response to an attack doesn’t mean or suggest that she secretly wanted the attack. Full stop. There’s no need for the claim that these women are “extraordinarily nonstandard” or for anything else to compound the harm.

36

Barbar 05.08.06 at 2:40 pm

There’s no need for the claim that these women are “extraordinarily nonstandard” or for anything else to compound the harm.

Um, who claimed that? I see offense being taken at the suggestion that possible arousal during rape lies close to the heart of what makes rape wrong.

37

Arturis 05.08.06 at 2:50 pm

So wait. You don’t think there’s a factor of involuntary arousal in cases of rape? Let me ask you this:

Why are so many rape victims ashamed? There is no other crime that has as much shame on the part of victims. Other forms of assault don’t induce so much shame, and other forms of sexual assault don’t, either. Even a comparable experience of being subjected to someone else’s sexual gratification doesn’t induce so much shame on the part of the vitim. If someone exposes him/herself to you and masturbates in front of you, you’re more likely to joke about it later to friends than to be afraid to report the crime to the police.

So what is it about rape that inspires so much shame?

Biologically, most women can’t be penetrated without being aroused, except by things harder than a penis. So is it completely unreasonable to suggest that forced arousal plays some part in the process of rape and in the emotional aftermath? Is it completely unreasonable to suggest that because rape has been a necessary means of procration for many women throughout human and mammalian history, there is a biological response of arousal to the process that still doesn’t make it okay?

I ask this because there was a case not too long ago of a rape suspect’s defense being that his penis was too large for him to be able to rape someone without them being aroused. He had a doctor come to testify as to the truth of his claims. A DOCTOR! Shouldn’t that doctor have been able to say to that man that just because the woman was aroused doesn’t mean she gave you permission? Isn’t it a good thing to acknowledge the role that forced arousal has in sex crimes, and then to say that arousal is not consent?

38

99 05.08.06 at 2:52 pm

How is public nudity related to grabbing someone’s ass? Or punching them in the face?

It’s been established for at least hundreds of years that in nominally civilized society you don’t make physical advances towards others without series of social cues that affirm the propriety of the desire (“Can I grab you ass?” e.g.). I don’t think it is approriate to tap someone on the should from behind. Not because I think such touching is over the line (or likely to get someone all hott and bothered), but because it’s an unwelcome surprise.

Given there is zero historical precedent (in any substantive way) for the grabbing of an ass leading to happy romances, in the same way that punching someone in the face has little precedent in the furtherance of convivial friendships (outside of Chuck Whatshisname Novels), I fail to see how any of this is related to public nudity.

We prohibit ass grabbing because the grabee doesn’t like it, to the vast testimony in my existence (not that I’ve ever grabbed an ass to test this). Sure the grabber might like it, as might the puncher. But our jurisprudence system has never been based on assesing whether or not requested or involuntary responses mitigate the harm.

If you ask someone to kill you, and they do, is that person charged with premeditated murder? Yes. If it can be determined that you enjoyed it (dying declaration, etc.) does that attenuate the harm, or charge? No.

Really, this is all small potatoes. Let’s fire up the big guns: pedophilia. Isn’t it high time we got going on the thought experiments that priests maybe shouldn’t be defrocked if it turns out that some of their victims ended up homosexual? We might reasonably infer that a nine-year old actually learned that he preferred anal sex thanks to the generous, um, intervention, of a priest. And that young man, he should be thankful. Greatful, even.

But I suspect y’all will get all itchy about crossing some “line”. Splitters.

39

rilkefan 05.08.06 at 2:59 pm

Barbar, grep on “non-standard” in the above post.

(O.T.: Cutting-and-pasting “Barbar” I notice that the first “b” comes out capitalized, though it is appears uncapitalized in the “posted by” line. Odd software decision.)

40

James Lindgren 05.08.06 at 3:00 pm

Eugene Volokh never said that a woman victim “secretly wants it or secretly enjoys it,” or anything of the kind.

Eugene was referring to involuntary, unwanted, unconsented physical signs of sexual arousal. As one of your commenters above notes, obscenity or public sex statutes may indeed be based in part on unwanted, unconsented sexual arousal in those who would see the public sex, even while you are dead right that rape statutes are not.

I don’t have the relevant Catharine MacKinnon essay in front of me, but I remember her discussing the problem of signs of unwanted physical sexual arousal in women.

Without the source at hand, I have only my footnote text from 13 years ago, which reads (141 U. Pa. L. Rev. 1153, n.154):

“See Catharine A. MacKinnon, Sexuality, Pornography, and Method: “Pleasure under Patriarchy,” in FEMINISM & POLITICAL THEORY 207, 232 (Cass R. Sunstein ed., 1990) ([MacKinnon] stating that women’s physical responses are socially conditioned and that verbal responses saying that they are not aroused may be more accurate).”

So, by discussing unwanted physical responses consistent with sexual arousal, was MacKinnon saying that a woman victim “secretly wants it or secretly enjoys it”? I don’t think so.

Neither was my co-blogger Eugene.

Belle, in an earlier post, you implied that Eugene failed or would fail Feminism 101.

Would you say that, by MacKinnon’s asserting the existence of unwanted, unconsented measurable signs of physical arousal, Catharine MacKinnon would fail that course too?

(DISCLOSURE: I have written (once) on pornography–Defining Pornography (U.Pa.L.Rev. 1993)–finding in an empirical test that the MacKinnon-Dworkin test for pornography performed adequately in some tests and poorly in others, but it performed considerably better than Cass Sunstein’s test or the Supreme Court’s Miller test. And MacKinnon once proposed to me that we write something together in response to a joint critic of ours, a critic who inaccurately called me in draft a “radical feminist fellow traveler.”)

41

Arturis 05.08.06 at 3:03 pm

I’d also like to say that if you can’t detect the sarcasm in Thomas’s comment, you’re a worthless excuse for a human being.

42

Doctor Slack 05.08.06 at 3:15 pm

Barbar: Um, who claimed that?

Well, I think I saw someone up-thread imply that such women would be functionally equivalent to people who like being punched in the face, which would seem to me to be pretty non-standard.

Thomas doesn’t seem especially out of line to me, but I think he’s mistaken here:

Worse, she also immediately links this unwanted physical reaction to the offensive suggestion that some rape or sexual assault victims secretly wanted or secretly enjoyed it, which is to say, she restates her confusion.

It is not “her” confusion, or at least I don’t take it to be. Belle is, rather, suspecting (in a rather informal way) that such a confusion might lie at the heart of an interest in pushing an “overemphasis” on the role of unwanted arousal in laws against sexual assault. Unwanted arousal does not, obviously, mean “she really wanted it,” but it’s not as though the claim that this is exactly what it means is unheard-of. And given how much force “she really wanted it” and “no means yes” fantasies continue to have in society (cf. Duke rape case, related assumptions about black strippers), I think it’s legitimate to question how useful it would be to talk about unwanted arousal as a basis of law (as opposed to simply treating it as irrelevant to the law).

I think you might legitimately take issue with Belle’s speculation about EV’s motives, insofar as speculating about motives can be a chancy business (though if anything I think she goes almost too far toward giving him the benefit of the doubt). And you might plausibly argue that the potential for sneaking the “she really wanted it” confusion into discourse as a defense of rape might constitute an even stronger case for discussing unwanted arousal as explicitly one of the factors being addressed in laws against rape (not a question I could answer at this moment). But I think you’re reaching in arguing that Belle is endorsing that confusion.

43

Doctor Slack 05.08.06 at 3:19 pm

99: If it can be determined that you enjoyed it (dying declaration, etc.) does that attenuate the harm, or charge? No.

Who exactly has argued this?

44

Seth Finkelstein 05.08.06 at 3:43 pm

I may regret this …

There are two major schools of thought about the sociology underlying the post:

1) EV’s post was like a young child repeating ethnic slurs, something he overhears from nastier, meaner, bullies, and vaguely understands, but does not realize the full emotional power himself (reminds me of a very old Doonesbury cartoon about school busing and racial tensions, where a little black kid starts to argue with a little white kid, and looks at notes for what insults he’s supposed to use “You’re a — a — hooky“)

2) EV’s post was a deliberate tactic of dressing-up right-wing misogyny in legalistic rationalizations, part of the political program of normalizing the reactionary. That he knew exactly what he was wading into, and was deliberately and with malice aforethought, participating in giving raving wingnuttery a respectable facade.

I believe explanation #1 is correct, though I understand the thought-process of those who advocate explanation #2. This is the “nice guy” vs “moral monster” argument.

I think some of the company he keeps is a “bad influence”, and that post is a very clear example of the effects.

45

99 05.08.06 at 3:48 pm

No one as far as I know. That was my point (In Maine a person is guilty of murder if he or she intentionally or knowingly causes the death of another human being, engages in conduct that manifests a depraved indifference to the value of human life and causes death, or intentionally or knowingly causes another human being to commit suicide by the use of force, duress, or deception (Me. Stat. tit. 17-A § 201 [1996]). Maine also has a felony murder statute. It does not divide murder into degrees. from Answer).

I’m not a legal scholar, so someone may have gotten a charge reduced because they claimed less harm was done because the murder was pleasant, but I’m not aware of it.

Thus, questioning the degree of sensual stimuli experienced by the victim is unnecessary in finding harm (at least in assualt cases, even though there is plenty of evidence that people derive sensual pleasure from physical pain). The legality of consensual S&M probably varies by state, but punching a stanger rarely causes people to wonder if the victim experienced arousal. Why this standard should be applied to unwanted sexual advances is still opaque to me.

46

99 05.08.06 at 3:54 pm

I wasn’t trying to correlate women who enjoy being raped with people who enjoy being punched in the face. I was pointing out that the consideration of where we draw the line over unwanted touching is only apparently an issue for EV when the presumption of pleasure (experienced by the victim) on the part of the attacker should modify the social propriety (or legality) of the attack. Again, we never question whether or not someone who has been punched in the face enjoys it, and it never comes up as a thought experiment.

If more women were standing outside courtrooms begging for the release of rapists because they had such fond memories of the experience, I suspect we might revisit (socially) the punitive response to it. But I missed the groundswell of women who found it so pleasurable that it overcame their lack of decision making in the process.

Unless you read lots of Rand.

47

mpowell 05.08.06 at 4:01 pm

I agree w/ Seth’s breakdown in post #40. Personally, I am starting to think 2) is more likely. Based on Belle’s post, it sound like she thinks EV falls under 1). Given that, I don’t understand Belle’s strongly negative response to Thomas. Quite a few commenters have argued or suggested that EV secretly wants to link a victim’s sexual arousal w/ consent and Thomas’s original comment seemed much more directed at them than at Belle.

It seems like Thomas is misunderstanding Belle’s argument in this post, but I don’t see much disagreement in their two positions on the issue of unwanted touching and EV’s moral character. What am I missing Belle?

48

Kenny Easwaran 05.08.06 at 4:03 pm

Maybe I interpreted what Thomas said differently from how Belle did, but it seemed to just be making an obvious point. Some victims of rape (or other non-wanted sexual contact) get sexually aroused; by definition, no one has consented to rape (or other non-wanted sexual contact). The glib equation of sexual arousal and consent blames these victims, saying that they weren’t really raped, because deep down they wanted it. Thomas was just pointing out that sexual arousal and consent are two totally different things. In fact (as Eugene Volokh seemed to be suggesting in these excerpts, though I haven’t read the whole thing and probably wouldn’t like the rest of it if I did) this involuntary sexual arousal may well be an additional harm in itself, so that these aroused victims suffer an extra harm, and then end up with some of the people in this previous thread telling them that this couldn’t possibly happen if it was really non-consensual. The identification of possible arousal in the victim as an extra harm is an important point that Volokh has brought up – the problem is that people have attacked him for bringing up this point, rather than merely for devoting too much central space and concern to it.

49

Doctor Slack 05.08.06 at 4:09 pm

99 in 41: I’m not a legal scholar, so someone may have gotten a charge reduced because they claimed less harm was done because the murder was pleasant, but I’m not aware of it.

I didn’t see EV as arguing that it should be a mitigating circumstance, though if one were to argue that unwanted stimulus.

And in 42: I wasn’t trying to correlate women who enjoy being raped with people who enjoy being punched in the face

Fair enough. But Thomas is quite right, IMO, to very specifically make the point that unwanted stimulus is not “enjoyment” of rape, that some people are being rather too cavalier about whether they’re eliding that distinction or simply accusing EV of doing so, and that the difference matters. (And as much as I’ve thought EV guilty of bad faith in the past — and I often do — this is one case where someone accusing him of eliding the distinction between unwanted stimulus and “enjoyment” would need to show their work.)

50

Doctor Slack 05.08.06 at 4:10 pm

I didn’t see EV as arguing that it should be a mitigating circumstance, though if one were to argue that unwanted stimulus…

Hmmm, what was I going to say there, before I prematurely posted?

I can’t remember! Can’t have been that important. Sorry.

51

abb1 05.08.06 at 4:16 pm

Some victims of rape (or other non-wanted sexual contact) get sexually aroused…

Everyone here is stating this as a fact, but is it really a fact? Can I see some proof, please. Is this “some” like 20% or like 0.5%?

52

Alan 05.08.06 at 4:37 pm

I think I get it. Almost everyone likes chocolate, so I can wander the streets shoving chocolate into peoples’ mouths against their will and do it without fear of prosecution.

Being a cautious sort of a chap, I’ll put it to the test first. Where can I find Prof. Volokh?

53

Helen of Troy 05.08.06 at 4:54 pm

Where in the VC threads on this is public nudity explained as being offensive in itself? i.e. being naked as being similar to exhibitionism (flashing or streaking or masturbation) or public sex, or unwanted touching? I’ve read through most of the set, and seem to only find the assumption as a given that nudity is equivalent to sex, or that nudity is shameful (isn’t that a religious assumption?).

I ask because while I’m an American who has spent 95%+ of my life in the US, I’ve spent time in places where casual nudity exists. Or call it “logical nudity,” situations where not wearing clothes can be more comfortable than wearing clothes, therefore its merely a choice. i.e. Hot springs resorts (Japan), beaches and saunas (Europe). In the US the only place I’ve seen this is the Burningman festival.

For me, I found that after the first minute the general lack of clothes became just another type of clothing. Instead of (skin-tight) speedos or swimsuits (like in the US) they’re wearing skin.

Of course, there, no one group of people stands out as being naked or not (women, men, weight, age distribution). (Hmm, in those places, it’d be difficult for a perv to act- no trenchcoat, no surprise, no hiding frottage.)

In describing this to US folks, the negative reactions and worries were far more about looks than anything sexual. “Ewww, you saw *old* people naked?” “you saw *fat* people naked?” are what I heard. (My answer- I’m happy to know I’ll enjoy hot springs as much in 50 years [or 50 lbs heavier] as I do today.)

So, what % of fear of nudity in the US about sex vs. about beauty and aesthetics? i.e. is there a fear that seeing naked people won’t be sexy, because, well, bits are bits- they’re not mystic and powerful, they’re ordinary, they’re funny?

The VC threads could just as easily be: “Public toplessness, exhibitionism, and groping…” i.e. one is orthogonal: the % of your skin covered is only lightly related to sexual activity.

So, if there’s been a multiple-person discussion in one of these threads about the offense of nudity in and of itself, which thread? If not, why not?

54

Matt Weiner 05.08.06 at 5:03 pm

In re: nonstandard.

Belle said that people who are traumatized when someone taps them on the shoulder are non-standard.

This is obviously not the same as the claim that Thomas attributed to her in his 2:34 comment, using the words “non-standard.” He has a record of this sort of thing.

55

Dan Kervick 05.08.06 at 5:20 pm

So above we see Belle admit that an unwanted physical response in women is possible, yet she insists that this additional harm inflicted on these women (by the fact of physical response) is one that the law shouldn’t and doesn’t aim to avoid, without, as I see it, offering any good reasons for that position.

Yet it seems quite a reach to me to suggest that the wish to avoid that particular kind of harm has played any significant role in the formation of public attitudes and the law surrounding unwanted sexual touching. I thought Volokh was trying to understand the basis of our actual social practices – not some social practices that we could or should have.

Some of the people who post and comment here are lawyers and/or legal scholaras. So I ask them: Is there any evidence at all in the legislative or judicial history related to these laws, or in the writings on the common law which preceded them, that the prevention of uncomfortable and unwanted arousal has played a discernable role in motivating the laws?

56

Ben Alpers 05.08.06 at 5:36 pm

Seth in #40 poses the question in terms of whether EV is a “nice guy” or a “moral monster.”

I simply don’t think this is a logical disjuncture. Why shouldn’t some moral monsters be nice guys? Why in any way does EV’s status as a very, very smart and charming guy (Gil in #25) dictate how we evaluate him morally? As I suggest above (#7), by all accounts Albert Speer was a charming, intelligent, nice guy.

My evaluation of EV morally is based on what he’s written about, for example, torture. I’m perfectly willing to have someone explain to me why someone who thinks as EV apparently does about torture is not a moral monster. His retraction of much of his post celebrating the brutal treatment of prisoners seems to me very relevant to such a discussion…though his retraction does not undo the fact that his first impulse was to celebrate brutality.

However, his charm and intelligence are really beside the point.

57

Thomas 05.08.06 at 5:57 pm

Matt, Belle was making an analogy. Is there nothing that we can take away from the analogy at all? Or do people who are traumatized when someone taps them on the shoulder have something (whatever it is) in common with women who experienced involuntary sexual response as a result of a rape or sexual assault? Which parts are we to find analogous? How is using the analogy inappropriate, if that’s what you mean?

I think Matt did a typically nice job of stating Belle’s argument on the other thread: “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).”

Perhaps we should debate whether the “neglible” number of women with different experiences are non-standard? That’d be edifying, wouldn’t it?

58

Gil 05.08.06 at 5:59 pm

Ben,

First of all, Eugene never wrote (as many have inferred) that arousal of the victim is a mitigating factor. On the contrary, he proposed it as a possible factor explaining why penalties for certain activities (that may cause arousal in the victim) have harsher penalties.

I think we all come to issues with preconceived ideas about what’s right. Often he, as many of us do, proceeds to look for explanations for why our preconceived ideas are correct, when a clear objective rule justifying them isn’t readily apparent.

This can get him (and any of us) into trouble because often we are just wrong, or our notions are an inexplicit aggregation of traditions and our attempts to identify the goals fail.

But, I don’t think anything Eugene has written about unwanted touching, or torture, or homosexuality reveals anything monstrous about his character. His musings about unwanted touching boundaries, and about homosexuality are just intellectual exploration and reveal nothing sinister. His instincts about torture of extreme evildoers is quite common and easily understood (although mistaken IMO). I suspect that the percentage of people who don’t instinctively relish the idea of really bad people experience a taste of their own medicine is quite low.

I really know of no basis on which to judge him as a moral monster. Perhaps you’re willing to argue that the vast majority of people are also moral monsters, but I somehow doubt it.

59

Helen of Troy 05.08.06 at 6:40 pm

47 and 48,
The discussion so far here or on VC doesn’t seem to be going into physiology.

Are there aspects of sexual arousal that are entirely controlled by thought and not simply as a response to direct stimulus to nerves? If not, then that the body has a reflexive response to direct stimuli isn’t relevant to consent.

I’d argue that evidence shows arousal can be simply a reflex. This is because people incapable of thinking about sex- a person in a coma- can be made aroused (male or female). A paralyzed person can be aroused, even if the signal cannot get to and from the brain- but they can’t feel the arousal: its a local loop.

Or consider the ‘cure for hysteria’ in sanitoriums (ala Kellogg’s) 120 years ago: one treatment was essentially a vibrator. It would cause arousal whether or not the patient knew what the machine did, or knew what sex was.

There’ll be a bell-curve of how much reflexive response nonconsentual nerve stimulation will cause- but this doesn’t mean that one person consents more than another.

If you salivate because you smell food, that doesn’t imply consent to being force fed. That there’ll be a bell-curve of how much people will salivate when smelling food before being force fed doesn’t imply a bell-curve of consent.

60

agi 05.08.06 at 7:32 pm

Wow. I originally posted the link to The Happy Feminist’s site (to a post of hers which included a discussion of involuntary arousal during sexual assault in comments), but I guess Thomas made a better target for everyone’s ire. (Or is it cause I’m just a girl, haha?) Well I’ve been a feminist since I understood what the word meant, and I’m a consistent reader of Pandagon.net, where Amanda espouses both/and rather than either/or thinking. Perhaps we could use some here.

It can be true both that involuntary arousal has nothing to do with the evolution of our sexual assault laws and that it is a traumatic experience.

No one here is saying that such arousal is a mitigating factor in sexual assault crimes or that it implies consent; in fact, many of us are trying to say just the opposite. Shall we retire that strawman now?

Belle, I don’t know if there is some history with Thomas here (truth be told, I don’t read Crooked Timber all that often), but what exactly did he say that is so “inappropriate”? He was pointing out the irony of your shaming/silencing certain victims’ experiences; you don’t get a pass on this just because you gave a brave and public description of your own experiences with sexual assault. You and others are throwing around terms like “moral monster” and “worthless excuse for a human being” while commenters who elide consent and arousal (and joke about and ‘other’ women who may have had this awful experience) more or less get a pass from you.

It can also be true both that Volokh’s hypothetical is not even worth discussing, in the hierarchy of issues relevant to sexual assault, and that we should not be dismissive of rape victims who experience involuntary arousal when we are trying to make this point.

Is that so damn hard?

61

eudoxis 05.08.06 at 7:34 pm

Sexual arousal during assault is nonsense. It’s offense to suggest otherwise. But there is a world of difference between sexual advances and rape. Belle’s point seems to be that unwanted sexual advances are a prelude or starting point to rape. I disagree. I see inappropriate and unwanted sexual advances as differently motivated than rape.

62

Paul 05.08.06 at 7:38 pm

I’ve got some blog sociology for ya:

This:
“I think I get it. Almost everyone likes chocolate, so I can wander the streets shoving chocolate into peoples’ mouths against their will and do it without fear of prosecution.
Being a cautious sort of a chap, I’ll put it to the test first. Where can I find Prof. Volokh?”

Together with its 28 friends on this and the earlier thread is a stupid post because it manages to take offence at something that wasn’t said.
The same goes, double for the:
“why would he be interested in the sources of a prohibition if he didn’t secretly want to abolish it?” Post.
The “he’s probably a secret rapist – har!” and “also he is probably from a family of secret rapists” posts are not necessarily dumb, but they are depressing.
The “we are not trying to silence him, we are merely indicating that his thought experiment leads us to view him as a rapist from a rape family, and to publically denounce him as such” is dumb and depressing.
“We must refuse to discuss his ideas (and, while we’re at it, note that he’s probably a rapist form a rape family) because of how everyone agrees with them” is, to me, just odd. The idea that prohibitions on sexual assault are tied to involuntary arousal on the part of the victim seems deeply unpersuasive, and apparently just about everyone who read Volokh’s posts, including Volokh, more or less agrees. I think the earlier discussion of contrarianism for cowards is apposite here.
I’m still waiting to hear why Thomas is a worthless excuse for a human being, and possibly himself a rapist from a rape family.

63

Barbar 05.08.06 at 7:58 pm

I have a scenario for people to consider. Let’s assume an American soldier is being held captive by Iraqi insurgents. To torture him, a gay Iraqi soldier pounds him in the ass with his penis until he reveals the location of a secret American base.

This might seem morally repugnant to some people, but I’m curious as to why, exactly. In particular: to what extent does the possibility of the American soldier being sexually aroused by his treatment play a role in how offended we are by the Iraqi soldier’s behavior?

I’m interested in some serious discussion, please.

64

bellatrys 05.08.06 at 8:06 pm

Well, this is a realtime example of how a) nice, smart college professors can rape and/or beat their wives and children at home, while b) all their colleagues have not a clue that it’s happening, and c) refuse to believe that he’s guilty when the police take one of them away.

You cannot be a decent human being and hold that it’s okay to torture people to death if you think they’re evil; or that homosexuals should be persecuted lest they tempt others to stray; or any of the other abominable things that Eugene V. holds. You might be glib, smart, pleasant, polite, cultured – you might never do any of those things that you’re advocating or endorsing.

But the only thing which separates Eugene “Doth Protest Too Much” Volokh from John “Torture Memos” Yoo is opportunity.

There have always been kulturny tyrants and cruel rulers who were quite decent to those of their own sort. Even in America. Just read a little history, why don’t you, Belle? Remember a certain chap name of Tom who talked a lovely storm about liberty and justice, and sold children and tolerated, and probably practiced, rape of women he owned?

65

Little Heroes 05.08.06 at 8:44 pm

Mr. Lindgren, I can’t speak for Belle, but in re this:

“See Catharine A. MacKinnon, Sexuality, Pornography, and Method: “Pleasure under Patriarchy,” in FEMINISM & POLITICAL THEORY 207, 232 (Cass R. Sunstein ed., 1990) ([MacKinnon] stating that women’s physical responses are socially conditioned and that verbal responses saying that they are not aroused may be more accurate).”

So, by discussing unwanted physical responses consistent with sexual arousal, was MacKinnon saying that a woman victim “secretly wants it or secretly enjoys it”? I don’t think so.

Neither was my co-blogger Eugene.

Belle, in an earlier post, you implied that Eugene failed or would fail Feminism 101.

Would you say that, by MacKinnon’s asserting the existence of unwanted, unconsented measurable signs of physical arousal, Catharine MacKinnon would fail that course too.

EV fails feminism IMO not b/c he acknoledges the possibility of involunatry arousal. That’s there. It’s a fact – it’s possible. Feminists don’t deny reality (AFAIK).

EV fails feminism b/c he starts w/ TWO PREMISES for penalizing genital contact – arousal in the assailant, and (involuntary)arousal in the victim. I don’t know why he didn’t go further. Then he punts on the assailant, and talks about the victim. EV ends up focusing on the victim’s potential arousal as the motivating factor for criminalization – not the assailant’s intent, which he inexplicably abandons.

See what he did there now? You start w/ a discussion of a variety of ways of looking at sexual arousal leading to criminalization of conduct, and end up with focusing on the victim. Almost like rape-fantasy fiction now, not a scholarly analysis of sexual assault.

But that’s just my take, and I’m a piss-poor feminist.

66

Christopher M 05.08.06 at 8:58 pm

I thought Volokh was trying to understand the basis of our actual social practices – not some social practices that we could or should have.

This is exactly why Volokh’s argument is so transparently retarded. His explanation for why the law treats genital-touching differently from shoulder-touching is nothing but a Just-So Story. The melody is familiar: it’s the same tune you hear in evolutionary psychology, complete with undemonstrated, theoretically unmotivated assumptions about Our Biological Nature whose primary appeal is as a fancy way of saying “Fuck you, P.C. feminists, the fifteen-year-old boys were right all along!” Only this time the tune has been transposed into the key of Legal Analysis.

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Ken C. 05.08.06 at 9:08 pm

“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”

I agree that this is a serious societal problem; I agree that embracing feminism is something we should do. But, I suspect that many of the men who do this already know that it’s wrong, and don’t care. I also suspect that very few men do this. (Since a similar claim elsewhere brought on a deluge of idiots: please note that there is no contradiction here, as a few men could be doing a lot of groping.)

“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.”

This almost sounds like you think that unwanted touching and rape (of men) are not problems that men face. But you just mentioned prison rape, so you don’t think that. So, where’s the mitigation?

“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.”

I’m afraid this gives me pause. Is someone who licks my feet, to get off, a sexual assailant to the same degree as someone who grabs my privates? I wouldn’t have thought so, but I can only defer to your unfortunate range of experience here.

While I think Volokh was totally off-base about the involuntary-sexual-arousal thing, I am sympathetic to the project of trying to understand what might be a coherent basis for laws concerning behaviors that span a range of yuckiness, intent, and effect.

A guy exposing himself or beating off in a subway car surely is committing a crime. How about if he’s in his thirtieth floor apartment, and may or may not have forgotten to close the curtains?

Naked at a nude beach, clearly ok. Beating off there? No. Getting an erection?

Public breast-feeding obviously should not be a crime, but some people inexplicably find it yucky. Why shouldn’t they want it to be a crime?

Urine is sterile, and harmless, and exposure-with-intent-to-pee has no sexual element, and yet…

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Thomas 05.08.06 at 9:09 pm

I’d like to associate myself with everything agi says (again!), with the exception of her third paragraph (as I said before, unfortunately some people here are suggesting that arousal implies consent–that’s apparently why they believe it to be so important to deny the possibility of unwanted arousal).

agi, to be fair to Belle, I’m confident that she thought me a worthless excuse for a human being long before this. But I’ve never been particularly impressed with her, so in this context I think we’re even. If it’s possible, that’s even more true for some of the commenters, most of whom couldn’t follow instructions on a cereal box top, much less an argument.

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Christopher M 05.08.06 at 9:10 pm

In particular: to what extent does the possibility of the American soldier being sexually aroused by his treatment play a role in how offended we are by the Iraqi soldier’s behavior?

I’m going to go out on a limb and say: None. To no extent. If the Iraqi gave the American a perfect anaphrodisiac beforehand, so it was guaranteed that the American wouldn’t be sexually aroused at all, it wouldn’t be even one bit less offensive. Or more offensive, for that matter. Similarly, in the crazy hypothetical Bizarro world* where being raped isn’t generally a turn-on, rape wouldn’t be any less worthy of punishment.
* AKA: reality

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Adam Kotsko 05.08.06 at 9:10 pm

Belle, I don’t think you went far enough. I am friends — though not close friends — with people whom I know to be morally bad people. I have a good time with them sometimes, chide them for their sins. Basic interpersonal skills, and even being fun to be around to non-victims, are on a whole other plane than actual morality. I say we should enjoy such people’s company while reserving the right to say, in the public sphere, that they are in fact bad people. (I’m a little self-interested here: If people didn’t have such a policy, I may well have no friends at all.)

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Barbar 05.08.06 at 9:20 pm

Similarly, in the crazy hypothetical Bizarro world* where being raped isn’t generally a turn-on, rape wouldn’t be any less worthy of punishment.

Intriguing. This seems logical, but it’s so dazzlingly counter-intutitive that I’m going to have to sleep on this. I’m thinking about organizing a conference where some of the sharpest logical minds in the world can get together and debate this. You’re invited, as is Thomas, of course.

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Thomas 05.08.06 at 9:35 pm

barbar, given that you’ve failed to note, after more than 250 posts on the subject, that there’s a difference between a “turn-on” and an involuntary sexual response, I’m guessing you do struggle opening the Cheerios in the am. Have you thought about bag cereals? Better for the environment too. But, then, you’d probably be handling scissors, so maybe that’s not a good idea.

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Christopher M 05.08.06 at 9:39 pm

Barbar: if it didn’t have to be spelled out, I wouldn’t…

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Barbar 05.08.06 at 9:41 pm

Thomas, you may need to work on your reading comprehension, and explain where *I* used the phrase “turn-on” or where my scenario rules out “involuntary sexual response” as the nature of the reaction. But other than that, kudos on a biting response that really hit home.

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Thomas 05.08.06 at 9:46 pm

Thanks, barbar. I do look forward to the conference–perhaps we can get together and you can give me some pointers on the “biting response” thing.

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Christopher M 05.08.06 at 9:49 pm

Thomas: What is the difference between “turn-on” and “arousal” supposed to be? Volokh didn’t refer to “wetness” or some physiologial reaction confined wholly to the genitals; he referred to “arousal.” Here’s what he wrote:

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.

The “arousal” in the last line (i.e., the other person’s) must refer to the whole mental/physiologial complex of responses we also call getting “turned on,” or else it hardly makes sense. (No one thinks the reason sexual assault is specially wrong is that it happens to make the assaulter’s penis hard; it’s that he’s getting his jollies that bothers us.) So unless Volokh is equivocating on “arousal,” it can’t just mean “lubrication” or something when applied to women, can it?

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James Lindgren 05.08.06 at 9:50 pm

little heroes,

Putting your seeming anger to one side, I have trouble determining how much we disagree substantively.

1. We both agree that involuntary sexual arousal exists.

2. I assume that you agree with me that (as I commented above in #40) Belle is “dead right that rape statutes are not” “based in part on unwanted, unconsented sexual arousal in those who” are the victims.

3. You offered no opinion on my other substantive statement, but you might or might not agree that “obscenity or public sex statutes may indeed be based in part on unwanted, unconsented sexual arousal in those who would see the public sex.”

4. If you accept point 3 (which you may not), then I would expect that you would agree with me that there should be a narrower scope for this concern for involuntary arousal than even Eugene’s revised position would allow.

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Raw Data 05.08.06 at 9:55 pm

“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.”

Offhand, I can’t remember a post where I have seen personal dislike so clearly stated.

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Barbar 05.08.06 at 9:56 pm

christopher m — Thomas doesn’t have a defense of Volokh — he just hates the stupid hypocritical feminazis who are attacking Volokh, and so he thinks he’s come up with some sharp point that proves their hypocrisy, and which has him coming out as the real feminist to boot.

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Thomas 05.08.06 at 10:06 pm

christopher, it seems to me that sexual arousal, as EV uses it, is broader than “turn-on.” Turn-on refers to “something that causes pleasure or excitemearousal innt” (Dictionary.com). Involuntary sexual arousal wouldn’t necessarily be experienced as pleasurable, and certainly wouldn’t be so experienced in the contexts under discussion. But sexual arousal in other contexts is often (maybe usually) experienced as pleasurable.

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paul 05.09.06 at 12:00 am

I dunno much about Volokh beyond what I hear — mostly objectionable — but someone mentioned that he was a “prodigy.” So I looked him up: even taking into account his complaints about ” judicial citations of Wikipedia, arguing that information found on Wikipedia may be unreliable” I found this to be possibly germane:

He is a critic of what he sees as the overly broad operation of American workplace harassment laws, including those relating to sexual harassment.

Teh sex thing . . . what’s with that? And torture too? Someone have issues with power?

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abb1 05.09.06 at 1:54 am

Come to think of it, there is, indeed, a form of rape where the victim is aroused – that’s when the victim is drugged and then has consensual sex with the perpetrator.

Does the fear of being aroused have something to do with banning this practice?

Don’t be silly, smart lawyers. No more than the fear of dreaming of being rich has to do with banning financial fraud.

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Belle Waring 05.09.06 at 4:26 am

agi, others; I took offense at Thomas’ comment because he was basically accusing me of being part of some anti-feminist plot to silence and shame women who experienced involuntary sexual arousal during an assault. I took this to be obviously ludicrous and insulting. as to the other point, I said this:

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.

so, where am I going wrong on this? I don’t intend to silence or marginalize anyone. I’m just talking at the moment about EV’s analysis of laws against groping strangers.

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dale 05.09.06 at 4:36 am

what a well-written, well-thought-out post. thanks, belle. earlier contributions had me thinking poorly of your composition skills (not content, but form). not that you care, of course. but nevertheless. i stand (thoroughly, savagely, humbly, properly) corrected.

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dale 05.09.06 at 5:39 am

the “involuntary arousal” concern:

i have been involved with two women (that i know of) who were raped (that i know of). both were raped when around 13. another friend was gang-raped in a hotel room, when around 19.i also worked for a rape counselling service, for a time, and discussed the issue with the staff there. this is still anecdotal, though.

both women i was involved with when discussing the issue, said that one aspect of the event that really bothered them, was involuntary arousal. one of them felt complicit in the act, through bodily participation. in her case, it was because the (older) man had taken steps to ensure arousal, through appearing non-threatening, and through petting her genitals (i.e. through some form of anticipatory foreplay) before moving on to rape.

the other woman was forcibly raped, over the course of an afternoon, locked in a room with the owner of business where she worked. she was 12 at the time. due, in part, to the force and aggression involved, she was less capable of revisiting the memories. her sense of complicity in the act through bodily arousal, mingled with her memories of fear, force and crying, manifested as a variety of difficulties with standard sexual relationships.

in both cases, involuntary arousal seemed to the sufferer like a betrayal of the victim, by the victim – that her body had sided with her rapist, to some minor extent – and led to deep and lasting depression.

in the third case i know of, the woman who was gang-raped developed a polarised sense of sexual relations, rapidly alternating between behaving as an extremely promiscuous drunk and a hyper-vigilant prude, incapable of managing touch at all. from discussions i had with her, this was her way of relating to the fact that she had against her will been made complicit through elementary physiological arousal, in her rape, beating and humiliation. her sense of sexual identity was (seemingly) inextricably bound to this event, she could not access it without alcohol, and when she did, her ideas about her own sexuality required her to sleep with whomever was available. much damage had been done.

it seems this is not uncommon, nor would it be, i imagine. many of the simple states of arousal are reflexive and tactile, and the dissociation of person that so often accompanies a violent attack (detaching from the event) takes time to occur. in that time, while detachment grows, one can register simple tissue arousal.

be aware: i am not talking about a mind and body arousal. i am talking about the kind of ‘arousal’ that arises when tissue becomes congested with blood, arising from contact, and nerves in that tissue are stimulated by the compression. unavoidable. not particularly long-lasting either, i imagine.

in the welter of sensations, fears and input that follows, this is often lost, but such awarenesses (the awareness of ‘bodily complicity’) often surface weeks, months or years after the event, and add a further layer of shame and trauma to an already horrible experience.

it’s seemingly perfectly normal, may play some part in the event, has disturbing, saddening and unpleasant consequences, and in no way implies consent. in fact, the lack of control implied by some form of bodily arousal often causes the victims to doubt their own resistance, and leads to years of psychological trouble. if anything, it’s a bad thing, and compounds the original act.

and it can happen to guys too.

thought-experiment: imagine you have a seven-year old daughter. you’re tied up. she’s raped to death in front of you. while this happens, an attractive woman (party to the crime) fellates you. you will get aroused, to some extent, or at the very least register sensory data that you associate with arousal. this does not imply your consent to the act of killing.

so the issue of arousal in abusive sexual acts is irrelevant. it may happen it may not. in that context, it’s like farting, digesting or yawning. it’s not relevant. arousal does not equal complicity, nor consent. the root issue in abusive sexual acts is that of coercion of one person, by another, in service of the first person, and against the will of the second person. this infringement is made more serious by the relative (male to female) physical capacities (assuming a male-female transgression), by the nature of the service required (personal, intimate, invasive, physical, emotional) and by the nothing else.

I think there’s a lot of types of ‘arousal’ floating around this topic, and they’re not being properly defined.

simple physiological arousal, ranging from nerve-ends, to lubrication, to whatever, might occur in some cases. co-factors in this might be the nature of the assault, the sense of fear, the sense of danger (both as a stimulant or an inhibitor)and an endless number of others. this is interesting from a specialist point of view, but entirely tangential to the underlying good or bad involved.

i also tend to think that speculating on it, brooding on it, or otherwise perseverating on the topic, if you’re not a medical specialist or a psychologist, can be seen to be at least a little dodgy.

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dale 05.09.06 at 5:45 am

and yes, I know the duplication of “(that i know of)” in the first paragraph makes me out to be partly an idiot, without the elementary skills that allow men to recognise women:)

never correct a sentence without removing the original error.

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Barry 05.09.06 at 6:46 am

“Teh sex thing . . . what’s with that? And torture too? Someone have issues with power?”
Posted by paul

A Jim Henley quote from the original post on Volokh: “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.”

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agi 05.09.06 at 7:18 am

Belle,

Thanks for the response. In retrospect, I think I was not making enough distinction between you and some of your commenters/defenders. I didn’t have a problem with your first post in isolation, but rather with the comments that ensued. However, I did appreciate your clarifying point 5a in the second post. As a relative outsider to the community, I was surprised at the seemingly out-of-proportion response to Thomas’ comment, but I have no interest in starting a discussion on people’s intentions/what constitutes trolling, so I’ll leave it at that.

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citizen k 05.09.06 at 8:28 am

How can you think someone who excuses torture is likeable?

90

Tim 05.09.06 at 8:50 am

I’ve been thinking about this overnight, and I can’t come down so hard as Belle does (besides, she does it better than I ever could). Volokh knows in his gut that there’s something wrong with groping, etc., but as a libertarian (and an honest libertarian; though the line about libertarians being right-wingers who want to sleep with liberal chicks is funny) he needs there to be an injury in order for there to be a crime, and he’s trying to figure out what the injury is.

The more that libertarians and conservative thinkers think about what is actually wrong with these sorts of wrongs, the better, as far as I can tell. Even, or maybe especially, if it’s to say, Geez, this is something that my political philosophy can’t deal with; maybe I’d better tweak my political philosophy some.

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Uncle Kvetch 05.09.06 at 8:59 am

He is a critic of what he sees as the overly broad operation of American workplace harassment laws, including those relating to sexual harassment.

Don’t be such a buzzkill, Paul. We’re in the exquisite, ethereal realm of intellectual inquiry here! Stop bringing us down with all this “context” and “history” and “real-world implications”! Why do you want to silence a great thinker when he’s on a roll?

[/snark]

I recall that back when Volokh was entertaining the possibility that gay men really do “recruit” other men into their ranks, a number of people pointed out to the esteemed professor that the “recruitment” angle was part & parcel of the religious right’s antigay rhetoric. In other words, his purely abstract “thought experiment” (which was, itself, based on a complete absence of any empirical data) might have implications for real people in the real world. EV’s response was essentially that he didn’t intend to be providing aid and comfort to the homophobes, and if that happened…well, tough shit.

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Raw Data 05.09.06 at 9:00 am

Trolling is an important subject.

Accusations of trolling a red-herring and used by people Left & Right to avoid dealing with a question. It attacks the motivations of the questioner rather than answering the question itself.

It’s a cheap but effective trick.

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J.R. Clark 05.09.06 at 9:20 am

I’m probably overgeneralizing here in respect to Volokh, but most libertarian-types get their introduction to the philosophy from Ayn Rand’s fiction.

In both Atlas Shrugged and The Fountainhead, Rand’s “love scenes” read more like sexual pathology. Rand portrayed rape as a ritual of ownership and the correct relationship of Industrial Man with his women.

Rand’s women are anti-feminist vessels for the savage power of rich, brilliant men.

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citizen k 05.09.06 at 10:34 am

RS #11 is on the mark. I’m less offended by EV, who I dismiss as an apologist for torture and discrimination, than by Belle and her “liberal” excuses for well spoken law professors. Why is some Aryan Nation biker in a trailer more offensive than Professor Torture-isn’t-so-bad? It’s not “civil” to tolerate open evil, it’s cowardly.

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Raw Data 05.09.06 at 12:34 pm

That’s a switcheroo, Citizen K!.

Now you are blaming the “victim” for insufficient hostility to EV. (And you coulda fooled me — Belle’s hostility is barely concealed by a ladylike saccharine smile.)

This thread gets better and better with more psychodrama at every turn.

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mpowell 05.09.06 at 2:43 pm

Belle,

Thanks for the explanation. It certainly seemed to me like your position was well-aligned w/ Thomas’ so I was confused. Finding it difficult to disagree w/ the content of his argument, I wondered, does this mean my mother raised me poorly? Following blog conversations can be so tricky as its never clear what is addressed to whom.

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citizen k 05.09.06 at 3:24 pm

raw data: The confusion you feel is common among conservatives – it’s akin to the problem that Ptolemaic astronomers had reconciling their observations with their theories.

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novakant 05.09.06 at 6:15 pm

I recall that back when Volokh was entertaining the possibility that gay men really do “recruit” other men into their ranks a number of people pointed out to the esteemed professor that the “recruitment” angle was part & parcel of the religious right’s antigay rhetoric.

Well, guess what, they do, if mostly in a very charming way. It’s quite common and I really see no problem with it.

The religious right is wrong in condemning it, the contrarians are boring me to death by harping on it oh so daringly and the PC crowd is making @sses out of themselves by denying it.

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novakant 05.09.06 at 6:16 pm

that first paragraph should have been italicized, sorry

100

Harald Korneliussen 05.10.06 at 4:37 am

abb1 wrote (and quoted):”Some victims of rape (or other non-wanted sexual contact) get sexually aroused…

Everyone here is stating this as a fact, but is it really a fact? Can I see some proof, please. Is this “some” like 20% or like 0.5%?”

No, I can’t do that, but before I go on, remember we are talking about involuntary physical reactions here. People who don’t understand the difference between that and voluntary reactions – well, I suppose the ones that end up as rapists or pedophiles are in that group.

My “evidence” is an anecdote from Ola Ødegård, leader of a norwegian organisation of adults seeking some justice and truth about their awful, abusive childhoods (Rettferd for taperne, “Justice for the losers”). I remember he explained in an interview once that there are some things an adult man can do to you (when you are a boy) that makes your body react in ways you don’t want. Since he was abused by men, Ødegård thought he was gay, and was deeply ashamed of it for many years, until he found out we wasn’t gay after all. I want to point out that he is in no way an anti-gay activist, nor does he make loud claims of being healed or anything. I would be suprised if he has anything against gays, he merely realised he wasn’t one.

What happens to other boys? Well, we know that all too many grow up to abuse children themselves, so one theory is that they convince themselves at one point that they liked it, because of how their bodies responded to the abuse.

The trouble is that it’s not just children (who understandaby are ignorant about how their sexuality works), many adults don’t understand either, they figure that if their bodies like a certain thing, then that’s the way they are and they should accept it, and suppress any emotional or even moral discomfort they might have.

I don’t know how much people’s bodies respond to unwanted direct stimulation, which would be the answer to your question. What I do expect is that it varies with age and gender, and greatly from person to person.

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Harald Korneliussen 05.10.06 at 5:05 am

mpowell, 96#, expresses my sentiments perfectly.

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abb1 05.10.06 at 6:11 am

Harald, I think ‘unwanted stimulation’ is not exactly the same as ‘non-wanted sexual contact’ and certainly very much different from ‘rape’.

The assumption here seems to be that if a woman grabs your nuts in a subway train (or man woman’s breast), you might have an involuntary erection. I can’t imagine this happening. You would feel humiliated. Humiliation doesn’t lead to arousal, voluntary or involuntary; at least in vast majority of human beings. Well, at least this is what my intuition tells me.

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Anatoly 05.10.06 at 6:27 am

This whole round discussion of Volokh at CT is, like:

Belle: OMG, WTF is Volokh talking about here? Has he gone completely bonkers? I had him down as this geeky lawyer type of the goofy-libertarian variety, with his desire to analyze absolutely everything down to first principles occassionally leading him to ludicrous arguments with ill-conceived conclusions. But here he’s writing as if he’s inhabiting Bizarro World, totally disconnected from reality. Was I that wrong?

CT Crowd: OMG, Belle, you totally ripped this moral monster a new one! Except, how could you possibly think well of him in the first place? Seriously, you might as well go have a beer with Ann Coulter ‘cos there’s obviously no difference between them except Volokh’s more sinister because he hides his kow-towing to Power and other assorted kinds of right-wing kookery behind seemingly intelligent veneer that never fooled anyone to begin with, which is why we haven’t been reading him these last five years! It pains us to even discuss creeps like him, but anyway, well done, Belle.

Belle: Uhm, guys? Would you like tone it down or something? This smug moral superiority shtick you’re doing totally creeps me out. See, he even admitted his error, although in very geeky dry prose, still rather disconnected from reality it seems. But anyway, you know, there’s always lots of intelligent, interesting people holding opinions we find crazy or twisted, and pretending that they are monsters outside bounds of civilised discourse would just make us appear smug idiots who’re only good at shouting people down. You know that, right, guys? Guys?

CT Crowd: Belle, way to go with another stellar post about this crazed, morally depraved Volokh person! Erm, what are you hinting about with your repeated insistence about him probably being a basically decent, intelligent, interesting person? We know you know better. Remember, he endorsed torture! Is it a politeness thing, Belle? Is it about those friends you have in common? We’re totally not getting it, but apart from that, stellar post, Belle.

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citizen k 05.10.06 at 8:09 am

So, Anatoly, your point is that only humorless, smug, self-righteous and “morally superior” twits would consider advocacy of torture to be revolting? Smart, humorous, and wise people know that nobody ever takes that stuff seriously and that law professors advocating torture is always just an intellectual exercise? That’s a very mature and sophisticated approach because human history is so passe.

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Raw Data 05.10.06 at 8:51 am

Citizen K,
Are you presuming that I am a ‘conservative?’
Why?
Because I know the meaning of a question mark?

106

Anatoly 05.10.06 at 10:41 am

No, citizen K, that’s not my point. But claiming that Volokh “advocated torture” does illustrate my point – it’s technically correct (since he did advocate torture in some very special circumstances), but designed, by omitting important context, to make it even easier to join up in feelings of moral outrage over that repugnant Volokh person.

What I like about Volokh is the genuine curiosity that informs his blogging. You really feel that while reading him, no mistake about it. The man’s really interested in figuring out how the world and himself work, and is helping himself do that by publishing his opinions, reactions and sometimes almost brain-dumps, looking for others to agree or disagree, to argue and change his mind (or not). Take the issue Belle’s been writing about. He wasn’t advocating this or that change to the existing laws or customs about unwanted touching. He was trying to understand why things are as they are, what principles underlie the current system, and was basically thinking out loud in his post about it. Now, since he published his thoughts about it, everyone got to see that in this case there was something rather disturbing about the way one possible reason was extremely over-emphasized, compared to the other, much much more relevant and important reason. It could’ve been due to being carried away by his argument, as it happens when you focus on something and lose track of the more important thing. It probably also reflected some serious imbalance in the way these two reasons are considered in his thinking. Since he published it for everyone to see, he got critical feedback, like that beautifully written up by Belle, and changed his mind about it. His method of blogging worked for him in this case, as it did for torture-execution a year ago. If he was worried about some chattering nitwits on some blog comments somewhere looking for opportunities to morally condemn him, rather than engage his thinking and offer their opinions, he probably wouldn’t have written about it and wouldn’t get the chance to correct himself.

But he wasn’t. He offers his thought in a somewhat geeky kinda-naive way, as if all his readers are bound to judge them on merits, rather than look for ways to score cheap rhetorical points. And, well, I just find it sad that the CT commentariat so excels with the latter. I just went and reread some of the comments during that Iranian torture-execution thing. More of the same thing. “His being sincere makes it even worse”, etc. Uncle Kvetch wrote back then: “The fact that Volokh actually wrote the words “I like civilization, but…” tells me all I need to know about the man.” Now that’s a perfect example of what I’m talking about. It’s stupid; it picks on a phrase that can be used to make either enlightened or depraved arguments, depending on the context, which is here ignored; it dismisses the man and all his thoughts entirely in an easy and smug moral judgement, joining the chorus of other such chattering twits, and failing to offer even a shred of a point. See what I mean now?

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citizen k 05.10.06 at 11:00 am

What I like about Volokh is the genuine curiosity that informs his blogging. You really feel that while reading him, no mistake about it.

Really? That’s what you feel? I feel as if he’s an ideologist who “speculates” and “questions” and always comes out with the predictable result. If you have a counter example, where Eugene has a thought experiment that would piss off a right winger or comes to a conclusion that strongly contradicts a Bush administration policy, then I’ll admit I’m wrong. But quibbles about minor civil liberties stuff doesn’t qualify. I need some major heresy.

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Doug K 05.10.06 at 12:03 pm

I stopped reading EV when he couldn’t be bothered to think about the implications of torturing people. At that point it became clear the man is a moral imbecile: the gropery post is just one more steaming dollop of evidence.

Belle’s deconstruction is marvellously done, but it’s effort wasted I fear.

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citizen k 05.10.06 at 2:35 pm

raw data: It’s common for “conservatives” to have a world-view in which “liberals” follow a silly script invented by “conservative” ideologists. These “conservatives” get confused when we fail to follow the script and accuse us of inconsistency.

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Harald Korneliussen 05.11.06 at 1:23 am

abb1, it takes more than that, of course. I’m not quite sure we disagree on anything substantial on this, so I’ll leave it at that.

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shai 05.11.06 at 4:26 am

dale’s descriptions seem a little detailed to be an authentic translation.

since this thread is full of so much bullshit and there are no experts who can authoritatively state anything useful about physiological arousal i’ll just leave my own little story.

men in their sleep every night have erections in cycles independent of any kind of sexual gratification. translate this into the waking world with an example of a man on a bus getting an erection, presumably because of the vibration or movement clothes to rub against the genitals. totally outside of awareness i might add until he becomes aware because it is uncomfortable, and it’s true there is a feeling but equating it with sexual arousal is quaint.

now im sure there are many men who can relate to not deriving physical pleasure from mechanical stimulation from lack of positive stimuli. first we’re establishing that the idea that some mechanical act does not directly elicit gratification. following from that i will assert that a complex of a situation will most likely inhibit or alter the experience. I can assure you if someone were to perform fellatio on me unwillingly that it would feel gross not pleasurable and it would extend even to the feeling itself, most likely because the brain has the power to color feelings in just the way described.

but really you could take the intuition pump further and pretend the person has no relavent feeling at all, perhaps because of paralysis. there would surely be some shame and anger for being complicit, or self hatred for being targetted because of a false belief that they brought it on themself, or simply regret that things could have gone differently if they weren’t powerless or a coward.

certainly i would expect the feeling to be a lot stronger because the actual physical feeling of being violated would certainly cause a lot more disgust.

i am a male speaking from my own physical being but im pretty sure that the belief that simple physical stimulation of the clitoris directly causes positive physical arousal is bullshit, and irrelevant.

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shai 05.11.06 at 4:52 am

i would add that i think it’s entirely possible for there to be psychological conflict. assume for example that person would normally be very physicall y attracted to the person who is raping them under normal conditions. there could be moments where they somehow enjoy it while at the same time being disgusted and angry in some kind of succession. “incidental pleasure” or whatever you want to call it. not legally relevant at all of course.

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dale 05.12.06 at 3:31 am

hi shai.

i appreciate scepticism about anecdotal evidence. nevertheless, that leaves me daubed with the implication that i made up some crappy story, claiming rape, in order to win a point on an internet comments thread. that’s pretty cheesy. to clear the air (from my side):

the descriptions i recounted arose from two long-term relationships and one close friendship. the matters came up because they affected the sexual relationships in the former (ultimately leading directly to the dissolution of at least one of them), and the in the latter case, because the friend noticed that her friend (my partner) was (seemingly) comfortable talking to me about this.

what i haven’t included in my rather dry re-telling is the years of crying involved in the re-telling, the nights and days of frustration and misunderstanding, the eventual devolution of the personal relationship into an act of ongoing counselling, and the sheer difficulty with which the narratives were finally acquired. unfortunately, the medium doesn’t allow for that.

as for physiological arousal – i restate what i originally stated, and which you might have missed:

“i am not talking about a mind and body arousal. i am talking about the kind of ‘arousal’ that arises when tissue becomes congested with blood, arising from contact, and nerves in that tissue are stimulated by the compression. unavoidable. not particularly long-lasting either, i imagine.”

i think that’s pretty clear. by the way, i’m not necessarily talking about ‘clitoral arousal’ here. generally, there’s more to simple arousal than merely that organ. tissues react to stimuli as they are organized to do, like it or not. test it by poking yourself in the forearm, and observing a mild residual sensation and an automatic tactile response.

in at least one of the cases i described, there was more than elemtary tactile repsonse. but that was due to the nature and circumstances of the molestation, and that kind of planning and setting is generally ruled out in a violent, unexpected act.

as i also said:

“I think there’s a lot of types of ‘arousal’ floating around this topic, and they’re not being properly defined.”

thinking about it now, i think the conceptual language is missing things like ‘partial arousal’ as opposed to complete aousal (in which the latter might be ‘all factors, mind, body and intention involved’ or something), or ideas like ‘arousal-component’, with characteristics like ‘self-initiated/automatic’, ‘greater importance/lesser importance’ and so on.

abb1: i don’t know the numbers, and that’s a real problem. they’re difficult to find. partly, i think, this is because (in my own experience) counsellors (necessarily) downplay these reports for a variety of reasons.

(a)firstly, in a counselling environment, the imperative would be to ‘normalise’ such a self-report – to make it effectively ‘mundane’ and so pull its teeth. you’d want to recognise it, but b dismissive, to some extent. from the beginning, you’d want to make it clear that such responses have no bearing on the main case . the reason for this is that self-blame is common, it’s an obstacle to recovery, and the most common form of self-blame is “did i resist enough?”. women really are caught in a bind on this – some say ‘resist strongly’ at the risk of being beaten senseless, other’s say ‘let it happen’. if they choose the former they risk serious injury and death, and if they choose the latter, they’re left second-guessing their own behaviour. in this they’re often aided by a society that believes to some extent, that rape happens to women, because of some (unspecified) error of their own. in the cases of the people i know, even their families found it hard to get past this. so did i. i wanted to believe that it was somehow avoidable, as a way to maintain a world-view in which out-of-control things were excluded.)

so, in the organisations and communities at the coal-face, it would be understandable for such potentially self-blaming reports to be given short shrift.

(b) secondly, i think people involved in this work might leery of giving credit to exactly the kinds of arousal-confusion that this discussion has (with its attendant concerns about blame etc) and so research into women’s arousal or lack thereof might be tacitly discouraged. this is certainly true at the politically militant level, where the idea is denounced.

i’m guessing though.

interestingly, the discussion of involuntary arousal is more common in rapes when the victim is male. (according to google, that is.) and i know personally that it’s pretty common when the victim is a child. in both such circumstances, the issues surrounding women’s complicity in their rape are excluded, and i would also guess that partly, this is because it’s already accepted that men can be aroused ‘without their consent’, (not saying it’s true or false – just that it’s accepted), and it’s agreed that children can be too, based on their lack of experience. so in these domians, the matter migth be more easily discussed.

again, i’m speculating.

back to shai: i’m not going to argue the case with you, since i can’t take you to the centres or the people. also, i’m not a survivor, and that makes me a weak proponent. google the matter (i suggest ‘rape’, ‘involuntary’ and ‘arousal’ as keywords) or talk to survivor’s groups.

in your 112, you make the same case in essence. and agree with me that such events have no bearing on the core of the matter.

kind regards

dale

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dale 05.12.06 at 3:34 am

i apologise for the numerous typos in the previous comment. my typing is terrible, and my spell-checking erratic.

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