Is it “Rape” To Hold Someone’s Hand without Explicit Consent?

This is ridiculous overhype. The headline is particularly egregious.

The key phrase is “with sexual gratification in mind”. The romantic holding of a hand in no way constitutes sexual gratification.

Unless, of course, the holder has a sexual fetish for hand-holding. In which case, don’t we /want/ to criminalize that?

The intent is to define as “sexual assault” everything from forcible rape to creepy people getting off on surreptitious or unwanted foot fondling. Shouldn’t we? And if so, how do you do that without raising the hackles of people who think innocent hand-holding will also be criminalized?

Government does not grow more intrusive because of some alien desire on the part of government officials. It grows intrusive to fill the vacuum created when people are too afraid to disagree and to handle our own problems.

Why do things continue to be criminalized out of some chance that they can lead to bad behavior? Because we don’t trust society to handle problems anymore. Consider the recent “manspreading” arrests in NYC. First, people won’t approach a manspreader and say “excuse me, would you please move your leg?” Second, they won’t do so because of the relatively high chance that the rude person will start shouting “I have rights!” In other words, we get this because we refuse to work together, which leads to people no longer trying, which leads to a social vacuum.

But once we have these laws, they grow by their own inexorable logic. We worry that such laws will criminalize innocent hand-holding because it happens. Or perhaps you should visit a college campus sometime and see how it all works out.

@Powers:

When my significant other and i were on our second date in a crowded bar, i found the first prolonged touch of our knees to be *very* exciting, yet i am most definitely not a knee fetishist.

I think it’s a perfectly normal part of the human psyche to react that way, to find such small advances to be deeply arousing.

Even if truly no prosecutor would ever try to persecute someone for a violation of such a law, i think something would be wrong if the law even could be read that way.
And given what i’ve seen i have no doubt that it’s only a matter of time until such a case will land in front of a court. Some prosecutors are simply over-zealous and they even might succeed with a “it’s the letter of the law!” argumentation.

Consent laws, regarding sex, will always be highly contested, and I don’t know how I feel about them, as a young woman. For the record, I’ve always been described as confident to the point of intimidating by friends, which has affected the way I treat those working for me (I make sure to remind myself to smile and encourage). However, I had a situation last year that I think is interesting. A coworker and I shared a hotel room at a conference. We’re both runners. She went for a run one day and came back complaining of all the men yelling out to her (“Hey baby, why don’t you give us a smile!” Etc. I also went for a run that day, and received no comments (same route, one hour later, still plenty of people). I had no comments. I told her, said I didn’t know why, just curious, and got an, “Oh, you’re just as pretty. You probably just weren’t smiling. I smile by default.” The issue: I wasn’t upset! Folks just saw me running and let me be. I’m not saying anyone deserves to be catcalled, but I was surprised she complained about it but was then seemingly upset that it didn’t happen to me, as if strange men’s reactions to me provided some confirmation to me. No person ever deserves to be violated in any way against their will, but it seems to happen with any gender. “She touched my knee, and I’m not ready for that, she’s just a friend!” Or, “He said my dress looked great, he was ogling!” With some people, in some cases, I think it’s become popular to have a story of being objectified to have something to add to a conversation. Either that, or I’m a whole lot uglier and a whole lot more intimidating than I think.

And along with what’s already been said, we’re already a culture that’s freakishly opposed to touching, to our detriment, I believe. We don’t need anything that’s going to make that worse. Doesn’t anyone remember the experiments with baby monkeys raised without physical contact? (and even children, I believe, back in the “good old days” of apparently no scientific ethics. But I could be wrong about that). It was horrendous. We don’t need to move any farther in the “no-touchy” direction.

A student at the university where I work was charged with 4th degree CSC a couple of years ago, for dropping his hands to briefly cup the butt of a woman he was hugging while they were both drunk at a frat party.

The purity codes that today’s neo-Victorian feminists are coming up with are proving to be harsher and more wide-ranging than anything even our Puritan forebearers could have come up with. At least, then, if you repented of your sin, you were forgiven and fully accepted back into the community. Today, there is no repentance or forgiveness, but secret university tribunals and felony charges and registries.

That we think we are a tolerant and sexually free society is laughable. I think men, in particularly, need to get ready for an era of sexual repression with consequences like nothing we’ve seen before. I won’t be surprised if totally non-religious parents begin urging their children–especially sons–to wait until marriage for sex, not out of concern for their souls but concern for their criminal record.

@Powers, these “affirmative consent” laws have absolutely nothing to do with fetishism. I have no idea why you’d assume that.

They are based on the presumption that women lack the agency to say “no” to sexual contact they don’t want. So, we need to entirely shift the burden of proof to accommodate their weakness. Because we certainly could NEVER say no to sex we didn’t want, or walk away, or rebuff a man’s advances. No, that’s far beyond our limited capabilities. So we need lawmakers to ride in on their white horses to save us from ourselves.

One thing worth thinking about, from the article: we know how much prosecutors like to overcharge. This is a charge that could be tacked on to any and all sex crimes, and one that it would be almost impossible to defend yourself against.

For that matter, to use an extreme point, most actual rape is about power and not about sex. Its entirely possible to have actual, real forcible physical intercourse without “sexual gratification in mind.” Badly written laws are full of unintended consequences.

@ ertdfg – what if the person doing the waterboarding gets off on that sort of thing? 😉

@SOA: “Just laying there and saying nothing and doing nothing, is not rape.”

What is absolutely mind-boggling is that this is even a point for debate.

exactly, I am feminist enough to know women kick ass and the hell if any man is EVER going to make me do something I don’t want to do without losing an eye or getting his face scratched and his balls kicked. I answer to no man.
so I get really really pissed when women try to pull that they froze up and couldn’t say no. Or they were too scared to say no. Fuck that.
You are a goddess. You are woman. ROAR!!! Tell them NO! and go to hell! and start going for his eyes with your nails if need be.
I don’t get the powerlessness women try to peddle. No way. Not me. Not ever. I am Sarah Connor bitches. I fear no man.
He might over power me, but I will fight till my last dying breath. I am not going out like some simpering flower. No way no how.
Probably I give off that vibe too because no man has ever really messed with me even once. I think they know better.

When one combines this “movement” with the endlessly-repeated dogma that “women never lie, and must be believed at all times,” what we have here is the fulfillment of a dream. A militant feminist dream, that on a whim any woman, anywhere, can send any man she wishes, to prison.

It will not work, in the reverse. Only that one way, as we already know, from too many exonerations.

That result is unavoidable, as in most cases the only evidence to “prove” or “disprove” this newly-invented “crime” will be the statements of the accused and the “victim” of the now-felonious hand-holding. Only the smartest men will obtain their partner’s written consent to record and document everything. And based on these rules, I do mean everything. So, when one thinks of how easily an accused can be (too-often) falsely convicted of a sex crime in the United States, this assures a steady supply of “losers” to the prison system. Which needs to be fed to grow. A massive corporatocracy and a legislature/Congress filled with legislative terrorists demands it.

This isn’t news to the people who run “The System.” Years ago, the Justice Department of Janet Reno, during the Clinton Administration, published a research report that–based upon a variety of objective measures–estimated that as many as one-third of federal prison inmates convicted of sex crimes may be “FACTUALLY innocent.” That’s right, even the federal government is on record as being aware that many people are rotting in prison, and on the sex offender registry, after being violated in a manner ever-so-bad as the violation of being forcibly raped. “Factually” innocent means just that. Not a technicality. Not some clever lawyer’s dodge of the truth for his client. No, it means the “crime” never occurred. Just like over 25,000 “counts” of felony “sex crimes” never occurred in Wenatchee Washington, but nevertheless led to more than a dozen felony prison sentences being started.

Now the nut-case fanatics in the “victims’ rights” movements, who appear to believe that everyone in the country is simply repressing memories of being the daily victims of sex crimes, have been appointed to run the criminal justice system.

Even more disturbing, this “process” as it has been going on, has been focused to such a degree on black males in this country, that it has turned into the new “Jim Crow,” a bunch of people in the system and the public, who with jury verdicts and malicious prosecutions basically say the same thing as the murderer who recently assassinated people attending a black church–“you rape our women.” It is an odious farce perpetrated over the last 40 years, by mostly middle-class, mostly white women who have lobbied the legislatures of this country, to adopt pernicious laws that define normal behavior like teenage sex and, now even hand holding, as felonies just as bad as physically assaulting a woman and dragging her into a car. The proponents of these laws see no difference whatsoever, between these acts. For them it’s all the same. There isn’t much difference, between the people pushing these laws, and the legislature of Singapore’s prescription of “caning” litterers.

It is dangerous to let fanatics start running the government. The Germans learned this the hard way, in 1933. These “crises” and the “rape culture” is America’s version of burning down the Reichstag.

Therefore, if you are a good-looking, rich guy the networks will create a television program around you, featuring crypto-prostitute women chasing after you, with very up-front suggestions of exploitation and objectification of women. The program will, inexplicably, get great ratings. On the other hand, if you are a mentally-challenged, not-that-attractive adolescent who may be somewhat autistic or “slow” or “socially inappropriate” in some other way, there is a prison cell out there with your name already on it. When somebody decides it’s time to get even with you, a call to the police will bring an arrest warrant. And the prosecutor’s “no-drop” policy will ensure that a jury will be empaneled, that will inevitably “believe the victim.” The judge will have no choice, no matter how manifest the injustice, and a long prison sentence and sex offender registration will ensue. The goal is neither to rehabilitate nor protect. It is to vengefully annihilate, exterminate, eliminate.

Then, perhaps 35 years later, some long-forgotten or suppressed piece of evidence might surface, perhaps in a more rational time, and yet another innocent man will be “released” from prison, to piece together some kind of “life” after being inhumanely tortured, by each and every one of us citizens who chooses to be an accomplice to this human rights outrage.

We’ve forsaken our country’s core principles, irrevocably. We no longer can stop letting the fascist government here control us with this sexual terrorism and witch-hunt scapegoating. That’s because the delusion has become almost universal. As for the young men out there, my advice to you is either to become gay, or stay the hell away from women. You can’t tell by looking who is going to turn you into another lifer in The Joint, and who isn’t. Your constitutional rights (what’s left of them) are much more important than having sex.

The snide remark about “becoming gay” is not a joke. If you think about it, when the “victim” and the “accused” are both men, juries are a whole lot more rational about weighing the witness(es)’ credibility. Not only that, but the people pushing these laws are not interested in men-on-men crimes. If they do become interested, it will be due only to a surplus of prison cells that can’t be filled up with the targets originally intended.

I am a pretty people-pleasing person. I have gone along with things–sexual or not–because I didn’t feel like having a confrontation. And my going along meant that the situation really wasn’t something I cared much about either way. But, when it has mattered, I have ALWAYS said no. Because when it really matters, and you can–again, I’m NOT talking about a situation where a woman has a gun to her head or a knife to her throat or a man literally pinning her down and threatening her with violence–you say no. You don’t just go along.

This new climate where you can climb naked into bed with your guy friend, passively go along while he initiates sex, continue to have friendly encounters–including sexual ones–with him for months after, and then a year later accuse him of rape is just ludicrous.

It’s also anti-woman. If women are that weak, we better stay out of positions of power! I mean, how on earth could we have a woman president? What if the leader of another country tries to get her to enter into a trade deal that’s a bad idea? She will be too weak to say no! What if hearing a briefing about a civil war in Africa triggers her? We can’t have her sensitive mind exposed to that sort of thing! We cannot have it both ways. If women are so weak that they cannot be expected to say no to sex they do not want, then they cannot be trusted with positions of power. And if we can be trusted with positions of power, then we have to own our power and speak up when some guy tries to touch us in ways we don’t want, instead of just passively going along with it. But the end result of this is not going to be empowerment for women but a new Victorianism where we are increasingly seen as children who need to be coddled and protected by men.

Y’know, 3 years ago before I started reading this blog, I would’ve thought the prospect of someone being prosecuted for something utterly benign were so remote as to not be worth worrying about.

But if there’s one thing Lenore has taught me is just how foolish it is to rely on the Common Sense of people in authority as a safeguard against a badly drafted statute.

FRK is, in part, about a heightened awareness that whenever a law is enacted, there’ll be a bell-curve shaped distribution in common sense for the people applying it. On one end of that bell curve will be a portion – small, but able to cause huge damage – both empowered to interpret the law and belief-beggaringly devoid of common sense.

*They’re* the ones you have to worry about.

Don’t believe me? Ask the Meitivs…

@Resident Iconclast, spend some time, if you can stand it, at sites like Jezebel or Feministing and you will see that pretty much stated outright. Men have, for millennia, abused and exploited women. That continues to this day, in our culture, where the hook-up scene allows men to basically use any woman he wants for sexual pleasure without any repercussions while the woman will be branded as a slut. So, as a means of evening the score, men are now on notice that any and all sexual encounters they engage in could get them labelled a sex offender (and whatever legal penalities go along with that), just like women have long lived with the knowledge that any sexual encounter could get them labelled a “slut.” It’s only fair.

And if some innocent men end up suffering because of it, well, who has time to worry about what happens to some privileged, cis, middle-class, straight white guys anyway? They deserve punishment just by virtue of being who they are.

I spent 8 years studying feminist theory in college and grad school, and I would never have imagined feminism taking the nasty, punitive, carceral turn it has taken. Power corrupts, always.

Remember the Junior Anti-Sex League and their red sashes? We’re getting close to that.

We need to let these people know that George Orwell wrote 1984 as a cautionary tale, not a how-to guide.

“And how, exactly, do you or anybody else know the mental state of a hand-holder? ”

Exactly. If intent is what determines guilt, well, intent is too often in the eye of the beholder. I intend a neutral compliment; you hear a sexual remark — which is correct? Under an “intent” law, mark my words, there are NO neutral actions; ALL are hostile, because finding guilt (not justice) is the purpose of today’s criminal courts. (If the goal was finding justice, the plea bargain system with its 96% conviction rate would not exist.)

Intent is thoughtcrime — ie. the assignment of someone else’s interpretation to your thoughts and motives, regardless of what those truly were.

Puritanism and Victorianism are growing in weird directions.

Didn’t Andrea Dworkin and Catharine MacKinnon try pushing this on college campuses back in the 1980’s/1990’s? As I remember, it didn’t go too far because even the campus feminists realized that asking for consent to do everything got in the way of sexual pleasure. I can’t believe it’s being brought up again. I’m so glad I’m no longer a college student and I hope this stupid anti-sex crap is long gone when my children enter college.

Investment tip: buy stock in pre-printed legal consent forms.

Dating tip: Don’t leave home without ’em. And bring along a notary public for that extra margin of safety.

“James, you are incorrect. This is *absolutely* about women’s agency.”
I suspect we are talking about a different “this”.

“The other problem with your MMA analogy, of course, is that nearly all of the time when a person gets punched in the face it is against their will. On the other hand, the vast majority of human sexual encounters are consensual.”
But, we aren’t talking about human sexual encounters. We’re talking about attempts to initiate human sexual encounters, most of which are NOT accepted (responses vary from “I thought you’d never ask” to yes” to “OK, I guess” to “no, but thanks for asking” to “ew! No!” to “didn’t you get served with the restraining order yet!”

If a person’s way of soliciting sexual interaction is to grab the object of their interest by the extremely personal regions and say “you wanna?” and the answer is “yes”, no harm, no foul; have fun, you two. But if you happen to grabbing someone by the personal region, if unwelcomed, is a violation of person who has been grabbed (I trust that this is not a controversial position to take), the subtle switch from “don’t do that again if the answer is no” to “don’t do that in the first place unless you know it’s OK” isn’t about denying anyone the agency to say no (or yes, for that matter), and isn’t about believing that someone can’t say no.

I have a joke. You may or may not find it hilarious.
I can reduce everything, absolutely everything, that I have learned about women in several decades of interacting with them, into two simple statements.
1. Women do not like being treated as sex objects.
2. Yes, they do.
Discuss.

JJ,
So we cannot discuss things on this site that are going to affect our children and grandchildren for generations to come, because it does not fit into your narrow view of this site? Oh so wrong.

In some faith communities, we hold hands while saying the Lord’s Prayer.
Will we, by law, need to be granted a few moments before praying to ask permission of those on either side?

What about hugs? Same deal?

“A better analogy would be shaking hands. If I’m introduced to somebody, I put out my hand to shake hands. I don’t ask their permission first. ”

If you put out your hand, you are signaling “we should shake hands now”. If the other person puts out their hand, they are signaling “yes, we should” If you then proceed to shake hands, there’s been a clear consent before you did any hand-shaking. If, on the other hand, you decide you want to shake hands with this person, so you reach out, grab their hand, give it a vigorous shaking, and only then notice the look of absolute horror on their face, and then think to ask “is it OK if we shake hands?” and they say “no, I really don’t like to be touched.”… or if they just say “no, I didn’t want to touch YOU.” What does that make you?

“that wasn’t assault.”
No. It was battery. (as a matter of common-law, local law may vary.)

“If we’ve decided kissing and holding hands are by nature a kind of assault, that would be a pretty sorry state that no laws could fix for us.”
Not assault, but battery, and, as noted, common-law… hundreds of years old.

“I think any law demanding prior consent in any of these cases would erode and poison a little more of human community and communication that we can ill afford to lose.”
Not new. Adopted in the United States in 1789, after centuries of development in England prior.

https://en.wikipedia.org/wiki/Battery_%28tort%29

“I think the lines between what belongs on the Free Range Kids blog and what belongs on Reason.com are beginning to get blurred. Yes these consent laws are getting out of hand and there are lots of other interesting libertarian topics out there in the world too. But to say this particular topic is a free range kid issue is to take a bit of a leap.”

If only there were some kind of simple rule we could apply to decide what belongs on Ms. Skenazy’s blog. Some principle that could determine, simply and reliably, every time she was deciding whether or not to write something and post it here (or on Reason.com, or both.). If only there were, say, someone who had the power to sort out what should be on this blog, and what should not.

If only…

@Warren
“According to both my girls “No means no.” is good enough. This whole new “Only yes means yes.” is crap.”

I wholeheartedly agree.

To answer the headline: “Is it rape to hold someone’s hand without their explicit consent?”
The answer is “no”. (I think the proper headline would have been “should it be” rather than “is it”, although that doesn’t change my answer.)
But it CAN be 3rd degree sex abuse (See ORS section 163.415, for example… of course, your jurisdiction may vary), depending on where you hold the person’s hand, and it is a battery tort in most cases.

As a rape survivor of 25 years, an avid feminist and enthusiastic free-range parent, my only response to so much of the legislation over sexual contact issues from the past 25 years is that I’m tired of how we keep trying to establish laws to control everyone’s behaviors, without actually teaching healthy and productive behaviors at the same time.

We need is a lot more education around humanity, sexuality, personal differences, and the fact that there’s a wide range of preferences and healthy behaviors out there. In order to muddle through it all, we need to learn how to 1) express our feelings and 2) listen to others compassionately. At the same time, we need to occasionally be in situations that are uncomfortable and push our boundaries a bit. If we’ve learned lessons 1) and 2) well enough, then we should be able navigate out of the awkward/unfortunate moments well enough to grow from the experiences. (Therein lies the parallel to my understanding of Lenore’s views on raising kids to be competent adults…)

We’ve developed such shame and fear around all the processes it takes to become a healthy adult (learning about our sexuality, engaging in firm conflict resolution, taking risks, making mistakes, having egg on our face once in a while…) that we’re hobbling ourselves as individuals and creating a culture of thin-skinned people who need their worlds to be fully padded with cup-holders to keep them from crumbling emotionally. What’s wrong with experiencing some awkwardness or even pain? It’s one of the most effective ways to learn one’s own boundaries.

I don’t think we’ll ever eliminate rape, unwanted contact and sexual harassment, and I don’t wish anyone to experience these on any level, but the reality is that people will. Growing up hurts on many levels, and facing that pain – metaphoric or physical – is the only way to get over it and move on to become the wiser people we all hope to become.

I remember going bar-hopping with some girl-friends, and meeting a few fun guys for the evening. As we made our way through the Boston streets to the next stop, one of them jumped on my back and said “I want to rape you!” This was 1993 – a couple years after my rape – and I could have pressed charges, but I chose to make a simple statement of “I’m outta here” (or something like that), and make sure he didn’t get my phone number. His friends seemed appropriately shamed for him, so hopefully they helped him straighten out his own mind-set. His behavior helped me realize that I am not a perpetual victim, but that I can learn and grow and steer myself toward people who treat me and themselves respectfully.

Oy – I’m babbling on in a way I usually avoid online, but somehow I think this crowd will allow me my rant/vent in the kind spirit of free-range grown-ups who may see how this helped me. Thanks Lenore for keeping us thinking.

“You start with the general rule that any touch you don’t want is battery”

So every time someone (maybe both someones) brush past each other in a crowded pedestrian environment is battery.

If so, then the law is an ass. And unworthy of respect.

James Pollock, if I didn’t already believe my homeland’s policy of excluding lawyers from serving on juries was wise, reading a few of your comments would certainly convince me.

Julie C: Oh good, I do hope you’re right!

“‘You start with the general rule that any touch you don’t want is battery’
So every time someone (maybe both someones) brush past each other in a crowded pedestrian environment is battery.
If so, then the law is an ass.”
Well, yes, if you stopped there, it WOULD be pretty stupid. If only I’d thought to mention the many defenses to battery, instead of just linking to an article that described why just brushing past someone in the subway isn’t a battery.

I was a 13yo boy when the next thing happened. I was sexually assaulted by a 18yo neighbor boy and I didn’t resist. Two reasons: One, I’d seen this neighbor’s father hit him with a tie-iron and not faze him. Two, his father had just bought us a place to live and I was afraid that if I resisted or spoke up, I’d be homeless. (It was possible because we had to spend the night at his house while the mobile home was set up. I went through three nights of heck.)

My point is this, woman, man or child, not resisting doesn’t make it not assault or rape. There are ways to intimidate anyone into not resisting. Protesting this is wrong and doesn’t take into various factors. It doesn’t make you complicit to ‘just lay there’, no matter who you are. It’s still rape. All this “here me roar” is insulting to those who endure these crimes. Again, it doesn’t make a difference if you’re a woman, man, or child. You can be frozen with fear…there are reasons where resistance is indeed futile.

I’ve read- and it has been my experience- that freezing up, rather than fighting back, is more common than not with rape. In my case, the submission was preceded by a firmly worded “Stop”, but when he did not, in fact, stop, I made the decision to triage my needs. I feared that vigorous fighting back would only get me hurt worse. Fighting back may be awesome in theory, and even in reality sometimes, but when you’re in the moment freezing up may be the natural response. I don’t think you should have to fight back for it to be rape.

Anna,
Don’t worry, any lawyer would see through James BS and avoid him as a juror at all costs. Nothing worse than having a person on the jury that thinks they know the law. LOL.

“No James is not an attorney. He claims to be posting under his real name, claims to have passed the Bar in his state, but works as an IT worker.”
Sigh. No, James is not an attorney, and has never been one. He went to law school, earned a law degree (the doctorate in law completing his set, he now has an associate’s, a bachelor’s, a Master’s, and a doctorate, in three different fields), took and passed the bar exam, and went back to the career field he’d been in for the 25 years previous.
He does post under his own name, he did pass the bar, and does work as an IT administrator.
He is not afraid to post using both his first and last name.

“Therefore he is either lying about his name and credentials”
Or not.

“he was an attorney.”
Or not.

“Why he isn’t one now is anyone’s guess.”
You don’t have to guess. I completed law school in 2010, the peak of the biggest downturn in legal employment the United States has ever seen.
I took the bar exam because I said I would when I applied for scholarships, and because law schools report statistics, and one of the statistics that they need is how many of their graduates take and pass the bar exam on the first try.

“I am thinking fired for utter ignorance.”
You cannot be “fired” from being an attorney. If you are fired from a job that requires being an attorney, you become an unemployed attorney. This is because the thing that makes you an attorney is not your job, it is your license to practice law. Now, I could get a law license, if I wanted one; I meet all the requirements to be admitted to practice of law.

“I think the lines between what belongs on the Free Range Kids blog and what belongs on Reason.com are beginning to get blurred. Yes these consent laws are getting out of hand and there are lots of other interesting libertarian topics out there in the world too. But to say this particular topic is a free range kid issue is to take a bit of a leap.”

Hmmm. And I find it absolutely hilarious that you seem to think that you have a place in telling Lenore what Lenore should post on her Lenore’s blog. This is not a listserv that you join. This is the blog of Lenore in which she allows you (and everyone else to comment). If she wants to blog about the price of milk in the Ukraine, she can blog about the price of milk in the Ukraine. You don’t get a vote.

“We are not talking about torts. We are talking about criminal liability. What is battery in torts may not be battery in criminal law and vice versa. “Maybe you should leave the legal analysis to the lawyers.”

Actually, I’ve been talking about torts all along. Maybe you should have read what came before?

Perhaps, looking at the reference I cited (the Wikipedia article on battery torts) might have given this away?
https://www.freerangekids.com/is-it-rape-to-hold-someones-hand-without-explicit-consent/#comment-374178

Or the fact that I referred specifically to battery tort, not criminal battery?
https://www.freerangekids.com/is-it-rape-to-hold-someones-hand-without-explicit-consent/#comment-374193

“Maybe you should leave the legal analysis to the lawyers.”
If you have any factual complaints about my analysis, feel free to offer them, so that I may learn to do better. But “I want to talk about criminal battery instead of tort battery” is not a flaw in my legal analysis.

So then I guess no one needs to have sex ever because there is no way to tell if someone is consenting or not because even if they say “okay” they might not mean it, they might be saying yes under duress. So let’s all stop having sex and let the human race die off.

Its the only way to save the rape victims.

Yes I am being sarcastic because at some point you have to take responsibility for yourself.

“Actually, I’ve been talking about torts all along. Maybe you should have read what came before?”

Which was ridiculous in its inception, whether that was the specific comment I quoted or the first, since Lenore is talking about criminal law.

But you are correct, that I didn’t read all your comments. I often don’t. If I wanted to read law school exam answers, I would teach law school.

The guy who wrote this article about sex offender laws being insane also, ironically, wrote an article for Huffpo endorsing these laws based on affirmative consent.

And on the topic of the registry, which would be a likely punishment for someone who violated these laws, it’s important to remember that this would be wrong, not just because it’s excessive in relation to the crime, but also because the registry is insane and does not work. And contrary to popular belief, it is not just a list of people who’ve sexually assaulted children. See, for instance, this article and this article also.

Or, if you want something really politically incorrect and hardcore libertarian, check out this old, archived interview with Camille Paglia, which is from the defunct gay mag The Guide. (Incendiary views contained therein not necessarily my own!)

“Am the only one that understands that affirmative consent (‘yes means yes’) does not require written (or even verbal) agreement?”

No, it technically does it. But, how exactly can you prove ongoing affirmative consent after the fact absent a written agreement? (And, even a written agreement wouldn’t work, because, since the consent has to be ongoing, the woman could simply say that she withdrew her consent twenty seconds after she signed the document.) How would you suggest a person prove ongoing affirmative consent in court? Nobody seems to have an answer for that, and yet we keep passing these laws.

And, while I’m sure it’s possible that some people freeze up when truly threatened, that is NOT what is at issue in these cases. Read up on the kinds of cases coming out of colleges. We’re not talking about “I was walking down the street and a man jumped out of the bushes and grabbed me and I just froze.” We’re talking about cases where women are giving no resistance to sex with guys they have often had sex with numerous times before.

And I had to be a killjoy, but if you are so scared of a guy that you would freeze with terror if he were to make a move on you, you should not choose to go back to his room alone, or invite him into your room alone. If you really don’t want to have sex with a guy AND know that you are not going to be able to say no to him, don’t crawl into bed naked with him after a night of partying. If you know that you are simply frozen in the face of unwanted sexual advances, avoid fraternity parties. Know your own limits. I learned very early on that, when I got drunk, I was willing to make out with pretty much anybody. So, I learned very early on not to get drunk, especially not in settings where that was likely to happen. It would have been ridiculous for me to go, “Well, sure, when I’m drunk I lose all discrimination and will make out with any guy who looks at me the right way, so I’m going to keep on getting drunk and going to parties full of guys looking to hook up, and then blame those guys for my bad choices.”

At some point, women need to start taking some responsibility for themselves. Yes, if somebody attacks you, you are not responsible, and a “fright” response of being unable to fight or flee is understandable. But that is entirely different than what is generally at issue in “affirmative consent” cases, where is the issue is not a person being so scared they freeze but a woman who passively went along with sex she didn’t care enough to actually stop and then later regretted doing so.

It’s victim-blaming to say that a woman’s “no” wasn’t really a no because she was drunk/in a short skirt/flirting/otherwise “asking for it.” That’s not okay. But, it’s another issue to claims it’s victim-blaming to suggest that maybe women should not passively acquiesce to sexual advances from guys who are not threatening, forcing, or attacking them–guys who WOULD take no for an answer if they actually said it or resisted in any way–instead of just going along and wanting the ability to call it rape a year later.

anonymous mom-

I had had consensual sex with the guy who raped me numerous times before the rape. I never anticipated that he wouldn’t take stop for an answer; it wasn’t even on my radar. It was so far off my radar that I couldn’t think to fight back when he persisted. Are people required to fight back under certain circumstances?

College campusus have challenges with rape for a number of reasons.
You have some people who are fully-developed and in control of their sexuality, combined into close quarters with people who are just starting to explore.

You have people who are just learning about what they want, and people who are still learning how to negotiate to get it.

Throw in a liberal dose of freedom from parents, and enough alcohol to thoroughly suppress inhibitions.

You’re going to get plenty of cases of opportunists taking advantage of people who haven’t learned to fully communicate their limits, cases of mutual mistake, and cases of buyer’s remorse. You have to learn how to communicate what your limits are, and how to read a person to tell if they’re going to respect your limits.

I sent my daughter off to college two years ago; I hope I taught her enough to keep her safe.

“Affirmative consent” is intended specifically for the chilling effect. It says “don’t touch people unless you know they want to be touched.”

Not exactly; rather, it says, don’t touch people unless you have proof they want to be touched that would hold up in a court of law. That is not the same thing, and the difference could have a pretty big “chilling effect” on human love – and friendship, for that matter.

Actually, I suppose even as stated, I’d have a problem with it. It seems to me “unless it is reasonable to think they don’t mind being touched in this way” would be a more reasonable standard.

@olympia, but you are saying you said, “stop,” though. That would fall under the old “no means no” laws. It is not okay to have sex with somebody who has said “stop” or “no,” and I’m very, very sorry that happened to you and has happened to so many people. “No” and “stop” should be respected (in a way that I don’t think affirmative consent laws actually respect them, since under affirmative consent a “no” and passive acceptance are legally no different).

What “affirmative consent” means is that I could have had sex with a guy 2 dozen times, and time #25 I don’t say “no” or “stop,” don’t resist, don’t do *anything* to indicate I do not want the encounter to happen, but rather just lie back and think of England, and then I can have him charged with rape.

@Anna, I’m not sure the “chilling effect” is part of the intention, or if this is intended to “chill” relationships at all. I think it’s a power move. It’s the legal equivalent of “If you liked it, then you should have put a ring on it.” It’s saying, “If you wanted to have sex with me, you should have treated me well enough after that I’m not going to want to accuse you of rape.” It allows young women to hold the threat of rape charges over the head of young men they sleep with, as a way to wield power in a hook-up culture where they have for decades been on the losing end of the deal, in the same way that women in generations before them held power over the men they slept with by demanding engagement and marriage. I think what we really see in this is how exploited, abused, and devastated a culture of casual hook-ups has left many young women feeling. I think they are responding the wrong way, but if there was ever a clear sign that “free love” and “casual sex” were probably unworkable ideas for most people, these laws are it.

@Puzzled

you hit the nail on the head! I haven’t heard the problem described so perfectly.

“Government does not grow more intrusive because of some alien desire on the part of government officials. It grows intrusive to fill the vacuum created when people are too afraid to disagree and to handle our own problems.”

As the generations become less and less able to handle their own problems, they need a government to be more and more intrusive so that they can sanitize their life. This way they don’t encounter problems. Therefore they grow even more fragile and need to sanitize their environment even further. Where does it stop? WW3? When/if the environment gets so bad that 1/10 of the country is underwater? When we have more things to worry about than holding hands? When the population of ‘sex offenders’ get so big that they want to form a government and secede from the union?

I loved a scene from a black and white Tarzan movie I saw. “Jungle man fight to live. White man live to fight.”

As far as this article, I’m not sure where I stand on it. I’m having a hard time comprehending if it’s real or a Monty Python movie script. It’s hard to take this seriously. Helicopter moms are not the only ones that can take things out of context.

“I haven’t formed an opinion of anything you have written in this thread. Don’t care to. I have formed an opinion of you based on everything you’ve written.”

I’ll give that opinion the full consideration it’s due.

“If your love or friendship is so fragile that verifying it’s OK to touch someone before you do would break it…”

No, I didn’t say that. But then again, I’m almost 40. I suspect such statutes would have a much more harmful and “chilling” effect on the young.

But even at my advanced age, do I think it would improve my relationship with my husband if he had always had to ask my explicit permission before any kind of . . . ahem, marital activities? No, I absolutely do not. It would be – at best – embarrassing and unromantic. Are you married? Do you disagree?

“Many, many years ago, a complaint reached my bosses’ desk, and he shared it with me.
The complaint was that kept acting like I was always right.
So I asked, can you point to a time when I acted like I was ri”

Ah, no doubt.

That’s all.

Wow. If holding hands spontaneously is rape, than, following that logic, me changing my baby’s diaper must be child molestation.

Please don’t call CPS on me.

” If holding hands spontaneously is rape, than, following that logic, me changing my baby’s diaper must be child molestation.”

You left out an important detail… holding hands isn’t covered by the proposed change unless it’s for sexual gratification.

If you’re changing your baby’s diaper for sexual gratification, then, yes, CPS should be called.

(Wait. A stinky baby nearby is probably a big turn-off, so arguably…
Nope. I’d better leave that legal analysis to the experts.)

“Yeah, “no” and “stop” definitely make a difference. I guess in my mind, would they make enough difference in the eyes of a jury? Enough difference as an outright physical battle? It’s a question society makes you ask, when being asked by yourself is enough.”

Well, they should make a difference. The problem comes about when the only witnesses are saying “I said ‘stop'” and “no, you didn’t”. A physical altercation leaves other evidence… scratches, bruises, DNA… that can help the jury decide, instead of just which person they find more credible. Or they might believe you, but not enough to meet the state’s burden of proof.

“the kind of legislation we’re discussing here says otherwise, doesn’t it?”

The legislation that hasn’t even been written yet? It could say all sorts of things.
If it came out saying “no touching unless you have a state-approved marriage certificate!, I’d be against it. If it says “find out if the person wants to be touched before you touch them”, I’d be OK with it.

If it says “here’s a 27-stage contract, have it signed and notarized before beginning a romantic arrangement”… I wouldn’t worry about it, because it’s never going to be law.

The fighting ground for this sort of thing is going to be college campuses, and it’s going to be fought under Title IX, not criminal law. I can give you the analysis why, if you’d like.

Acquaintance rapes are hard to prosecute, for evidentiary reasons. This is likely to remain so for the foreseeable future.

James,

“So I asked, can you point to a time when I acted like I was right, when I wasn’t?”

Anyone working for me, that addressed a complaint in that manner would be told, “Yes, now when you thought it was appropriate to answer like that.” Followed by some form of disciplinary action.

But then we would never hire someone with your attitude or personality. Just would not fit in, and in our line of work, loudmouths and smart asses usually get dealt with within the ranks.

Donna,

You nailed it. I was just assuming James was just reading and copying answers from some website. But you nailed the law student dying to impress.

Funny how things are different in different circles. In our career areas most of the time the rookies will stay quiet and differ to the veterans. They shut up and listen. The few that try too hard impress never last. Maybe the difference between those that work with their hands and those that work with their minds. Dunno. I know we still use some old school ways of keeping rookies in line, that are not up to date with labour codes, but the job itself is old school tough.

“Anyone working for me, that addressed a complaint in that manner would be told, “Yes, now when you thought it was appropriate to answer like that.” Followed by some form of disciplinary action.”

Fortunately for me, I worked for somebody smarter than you, I guess.

“But then we would never hire someone with your attitude or personality”
Because I’m good at what I do?

“in our line of work, loudmouths and smart asses usually get dealt with within the ranks.”
You keep entertaining this fantasy where somebody beats me up.

“I was just assuming James was just reading and copying answers from some website.”
You assume all sorts of weird stuff about me. That is, if the “me” that’s typing in this comment is the same person as the guy who wrote those others. In any case, that’s B.S., seeing as how you claimed I was secretly a lawyer who was, for some reason, claiming not to be. You’re having trouble keeping your story straight.

“Funny how things are different in different circles. In our career areas most of the time the rookies will stay quiet and differ to the veterans.”
Besides the difference between “differing” and “deferring”, I am one of the veterans, and was at the time referenced, as well.. I’ve been in my career field for 35 years, less the time I was on active duty, and they gave me a different job specialty code. Not much call for my military occupation in the civilian world, though.

James,
You are a joke.

I have never claimed to be an attorney. I have never claimed to have a law degree. We pay good money to our attorney, for her experience and education.

You on the other hand claim to be an expert in law, without any actual experience.

“You are a joke.”

Specifically, this one.
How many Warrens does it take to screw in a light bulb?
Just one, but the electrical burns on his penis haven’t healed yet.

“I have never claimed to be an attorney”
No, but you did claim I was.

“I have never claimed to have a law degree.”
I would assume because you don’t have one. But I do.

“We pay good money to our attorney, for her experience and education.”
Good for you. Don’t try to give her the counterfeit money..

“You on the other hand claim to be an expert in law, without any actual experience.”
Oh, I have experience. Don’t you remember making fun of it?

Emily,

Not too far. He is just showing his true self. When James cannot rely on other’s work for his answers, and must do some original thinking he fails horribly.

We had a clear line, and anything on the far side was forbidden until marriage.

The problem happens when you want both the hookup culture, ambiguous (as always will be) “consent”, and attempts at preserving some line.

Why is “rape” more serious than running out on an prostitute (where legal, e.g. Nevada) without paying?

If it is intimate, then the prudes are right, and it should not be considered a horrible, brutal invasion. If it is not intimate, then the penalties should be proportionately mild. Choose.

“>>Specifically, this one.
How many Warrens does it take to screw in a light bulb?
Just one, but the electrical burns on his penis haven’t healed yet.<<

Too far, James."

Didn't like that one? How about this one?

What do you call a guy with no arms and no legs, relaxing in the hot tub?
Bob
What do you call a guy with no arms and no leggs, sitting on the porch?
Matt
What do you call a dog with no legs?
Doesn't matter, it won't come when you call it anyway.
What do you call a guy with two arms and two legs, but no brain cells?
W…ell, I think you know the answer to this one.

Sexual gratification from hand-holding? Does that mean Person A had an orgasm?

“Anybody who can’t think of a half dozen ways a vengeful ex- can use that law to get their boyfriend or girlfriend kicked out of college isn’t thinking at a college level.”

This is because Title IX does give you a civil right to be free of sexual violence, but doesn’t give you a civil right not be falsely accused.

Defamation law gives you a right not to be slandered or libeled, but is a much slower process. For bonus disparity, most college students are “judgment-proof”, unable to pay a judgment even if awarded. Guess this just makes it more important to make sure, before you get involved with somebody, that they aren’t the vengeful sort.

There’s a case in Oregon about a guy kicked out of Reed College, with all sorts of sordid sexual details coming out as the parties jousted in the press. Everybody loses.

“For affirmatuve consent to hold up you would need a notary, a priest, a fMRI, a doctor, a psychologist and many more for every step of every encounter. If woman are supposedly so weak and weakminded, even if the notary confirms the decision he can’t ascertain that she wasn’t pressured or felt pressured or was in her right state of mind or something or other.”

This stuff isn’t written in gender-specific forms. Male persons can use it, too, if they can stand the public criticism.

The NY Times article is germane and vitally important to all of us trying to understand a number of increasingly complex social and legal issues. Thanks to Lenore and to the author, Judith Shulevitz, for prompt action in focussing our attention.

When I was an undergraduate studying sociology, sexual mores in different cultures were an area of interest. Now we are all deeply engrossed in discussions effecting our own dear children.

When I was a graduate student studying child development, yes, age appropriate sexual behavior was a topic. But it was not a life and death legal issue as it is today, with teenagers being condemned by judges to “life on on the registry”, which may for many be a form of living death.

When I was a kid studying catechism, sex was scary, because you could go to hell. It seemed as if only virgins could get to heaven. “No touching” was the rule of rules. That was long ago, but the decision makers in the power positions, the media, the legal system, state legislatures and Congress, seem stuck in that 1950’s mind set, while most of the country is way beyond what was considered a sexual revolution in the 1960’s and beyond.

Now we seem to be nearing is a crisis in civilization, as subsets of our culture clash in the courts.We need to clarify our take on “sex”. Every newspaper editorial board, every judge, every parent, every child. No wonder this is getting messy.

Sex was so “personal” when I was young that many of us never heard it discussed in our homes.. Now it is all too public. Everything sexually is being legislated, bit by bit. Everything parental.

My concern is that judges and law-makers who grew up in in an earlier era are siting in judgement on issues they do not understand.

Where will they get the education they need to make good decisions? Where will the Supreme Court?

I have a great deal of sympathy for those touched unwillingly when not involved in some way. It used to be a running joke among the people (the girls anyway, hypocrites) I hung out with in my early 20s that I couldn’t go out without drunk women grabbing my butt. Middle of a conversation, back turned, complete stranger *grab*. I can understand their lack of control, since back in the day I had a really phenomenal backside. It took some restraint not to grab it myself. Thing is though, I can get behind (HAR) that being a misdemeanor on the order of a drunk and disorderly, but clearly barred from it being a sex offender registry crime. Despite being a guy, it was harassment interfering with my enjoyment out.

The flip side is, what mental gymnastics have to occur for someone to reason a couple on a date have not given each other permission to pursue spontaneous physical contact? It’s the obvious end game.

And while I’ll defend a woman’s right to walk down the street naked without being touched (stared at is a different story), the sheer entitlement involved in expecting to climb into a former sexual partner’s bed nude and not have them pursue sex is the stuff of The Onion. She should always have the option to get out, say no, etc, but her actions say yes. Sleeping in clothes on the floor or couch says no.

And all these laws stem from a bald faced lie on rates. The “survey” methodologies rarely disclose the actual questions counted as positive because they include any woman that’s had sex after drinking, boosting the numbers by an estimated 500%. My theory is it’s an out to blame someone else for feeling bad about one’s own bad judgment. The one that still gets me is the one at Occidental where the guy was kicked out for not saying no. He dropped her off, then she showed up at his room, climbed on him and had her way, then accused him of rape because she’d been drinking. None of the facts are in dispute. Of course, he’d also been drinking and she never got his consent (but since he’d been drinking, he couldn’t give it). His lawyer is suing under Title 9 as well. Her actions were more egregious as the aggressor and was given a pass because of her plumbing.

The 4% real number is still too high, but those cases also require different steps. That’s like including every time a parent violates a custody agreement by 5 minutes in abduction statistics. And both result in the same ridiculousness.

“‘This is because Title IX does give you a civil right to be free of sexual violence, but doesn’t give you a civil right not be falsely accused.’
Do you intend to imply that laws should be passed without a consideration being made about whether they may be easy to abuse?”
Where did I imply that? I STATED that such a law (TItle IX) had been passed. Rather quite a long time ago.

“Would you be ok with a law that says that anyone accused of rape must automatically be guilty?”
Um, no, would you?

“After all, falsely accusing people of rape is illegal…”
Yes, it’s defamation. Not sure how you get from there to “anyone accused must be guilty.”

Regardless of laws adapted, rape and other forms of sexual misconduct will remain often difficult to prosecute because:

1- there is no forensic credible evidence
2- the more mild is the conduct considered, the more ambiguous is there the meaning of acts
3- often the only witnesses are victim and perpetrator

“Really when it comes down to it, unwanted hand holding is already covered under the law as battery.”

So is rape.

(Psst. Warren… you forgot to complain that Andre there has never prosecuted nor defended a crime.)

Why would I say that to Andre? Andre is not like you. He does not come off as an obnoxious jerk. He is not here trying to impress people he doesn’t know. James your self esteem issues are showing. Why are you trying so very hard to be the smartest in the room, the authority? What is lacking in your life that you need all the attention?

You have become so predictable. I baited you with the battery comment, and you responded exactly the way I figured you would. Someone has done an number on you, because you have somewhat targeted me, in an effort to be the alpha.

Your attempts at humour, commenting directly back to me on comments I directed at someone else, and now pointing out others comments to me……………………Little Man, you are spiraling and your desperation is showing. I don’t know why you think you need to compete, but let’s just stop. Face it, you can never be the man I am, not even in the same league, and your life will be so much easier if you just accept your failings and short comings.

“Face it, you can never be the man I am, not even in the same league, and your life will be so much easier if you just accept your failings and short comings.”

If you have to tell people you’re a man, you aren’t.

I think that there is a puzzle (in the logical sense) society, or at least modern Western society, has yet to resolve.

Potentially sexual(ized) acts comprise a long list. Depending on context, previous encounters or else, even a handshake can give the one the persons some feeling of unwanted (or wanted) mildly erotic harassment (stimulation). Same goes for touching shoulders, merely bumping in someone for 1 second and what else. These could also just be strictly social or even unintended forms of contact with zero sexual/erotic content whatsoever.

It gets more complicated regarding ambiguous forms of display of affection, such as hugs, holding hands, side handing, hand on head etc. There are also a lot, a lot of cultural nuances to that, not only at national levels but even at family level, in terms of what are these nuanced borders of appropriate social behavior, well before any contact with more private areas is even considered. Any of these can be genuinely thought by one part as harmless or just friendly, and by the other as unwanted advance.

When it comes to flirting/dating, things get even more tricky. Any form of flirting/dating that involves physical contact might be tricky, unless couples have a profound pre-meeting discussion of what are all accepted limits.

Specifically, I agree that things are even more complicated when it comes to college-age populations, which are often closer in age, but also often vastly differing in terms of their previous pre-college experiences regarding these behavioral skills. In this context, it is very easy for a hug to be perceived by the other as a “rubbing and pressing me against the body”.

While I agree people, men and women, should be taught to say “no”, and that a “no” should be respected always, I also agree that assuming the approached part is let with a “burden to refuse” is complicated. Consent by silence has its own problems, especially when alcohol is thrown in the mix.

James,
Really? You do not see how one can stand up for themselves against unwanted touch? Ask the guy that grabbed my 15 yr old daughters butt in the hallway at school, last year. One good stiff forearm to the face, and he was off to the ER. That is standing up for yourself.

Gotta love daughters that pay attention to their lessons.

James,

Thank you. I will take Father of the Year for my girls knowing how to defend themselves against deviants like you.

Now answer honestly, do you really have a job? Because checking the timelines you are on here constantly. And replying to people almost instantly. Maybe you should spend more time with you kids and less time being the moron on the site.

Tell you what, Warren. I offer a deal. Well, a challenge.
Prove how much the bigger man you are by… not insulting me, longer than I can go without insulting you.

Or, just come right back with an insult or two, if you know you can’t do it.

“”The flip side is, what mental gymnastics have to occur for someone to reason a couple on a date have not given each other permission to pursue spontaneous physical contact? It’s the obvious end game.”

So, since if one person dates another person, they knew the other person wanted to have sex with them, therefore it takes some kind of “mental gymnastics” to think that maybe, just because they went on a date, they haven’t agreed to have sex?”

So seeking spontaneous physical contact, such as holding hands or the putting the stereotypical arm around the shoulders in a cinema now equals having sex?

“And you seemed to imply that you don’t really care whether that law is easy to abuse”
I’m not implying anything. I’m telling you why the law is easy to abuse. Title IX imposed a civil duty on the educational institutions to provide an educational experience that is free from sexual violence. It did not create any such duty to offer an experience free from false accusations.
False accusations are illegal, (because they’re defamation) but you have to go to court to get relief… which means finding and paying for a lawyer to prepare your case, proving it, and then, if you win, you get a judgment which is probably worthless, because college students don’t have assets which can be use to pay judgments.

“Did you intend to imply that, or did i misunderstand you?”
Again, I imply nothing.

“It’s a question about a *hypothetical* law to understand your opinion about whether false accusations being illegal is sufficient protection against abuse of such laws.”
Huh?

“So seeking spontaneous physical contact, such as holding hands or the putting the stereotypical arm around the shoulders in a cinema now equals having sex?”
Nope. It’s also not covered by the proposed law the ALI is working on.
From the article, above:
“The second is an enlarged definition of criminal sexual contact that would include the touching of any body part, clothed or unclothed, with sexual gratification in mind. ”
This would be an expansion from the way the law is currently implemented (for example, in Oregon).
ORS § 163.415
Sexual abuse in the third degree
(1) A person commits the crime of sexual abuse in the third degree if:
(a) The person subjects another person to sexual contact and:
(A) The victim does not consent to the sexual contact
To which you say, gee, that sounds a lot like rape. And it does, except, note that it doesn’t say “sexual intercourse”, but “sexual contact”. What the heck is that? It’s defined in the statute:
ORS § 165.305 (6)
Sexual contact means any touching of the sexual or other intimate parts of a person or causing such
person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the
sexual desire of either party.
So… the ALI is considering a proposal to recommend that states change this definition from “touching intimate parts for sexual gratification” to “touching anywhere for sexual gratification. But they are NOT proposing a change from “touching intimate parts for sexual gratification” to “touching”.

So, if Joe Pervert gets his sexual gratification by touching people, against their will, in the hair, back of the neck, and shoulders, right now that’s not sex abuse, even though the victim doesn’t want it and Joe Pervert is doing it for sexual gratification. If the proposed change makes its way into law, it would be. But if the change makes it to law, and Little Bobby tries to hold Little Suzy’s hand in the lunch line at the grade school, it isn’t sex abuse, because there’s no sexual element. (Now, if this is happening in the middle-school cafeteria, slightly-taller-little-Bobby might have a problem, since he gets wood if the wind blows, and if now-with-boobs Susie looks at him and smiles, he’s probably having to think of baseball as he reaches for her hand. So, Bobby’s mom better teach him to ask “May I?” before taking her hand.

“I’m not implying anything. I’m telling you why the law is easy to abuse. Title IX imposed a civil duty on the educational institutions to provide an educational experience that is free from sexual violence. It did not create any such duty to offer an experience free from false accusations.”

-> That’s nothing new here.
The question is whether it is an ok thing or not that that law is easy to abuse. What is your opinion – is it ok or is it a bad thing that that law is so extremely easy to abuse?

“Now, if this is happening in the middle-school cafeteria, slightly-taller-little-Bobby might have a problem, since he gets wood if the wind blows, and if now-with-boobs Susie looks at him and smiles, he’s probably having to think of baseball as he reaches for her hand. So, Bobby’s mom better teach him to ask “May I?” before taking her hand.”

-> Again you repeat what already is known here, that the law change can affect situations like the one above.
The question is if it is a good thing or not if Bobby gets into legal trouble for misinterpreting Susie’s smile and touching her hand. Do you think that it’d be a good thing or not?

We still teach mouth to mouth, and as part of the skills test before I issue a card, I still need to verify that you deliver breaths that result in chest rise – I can teach compression only CPR, but I can’t issue a card based on it (for AHA, Red Cross may differ.) We do teach, though, that you aren’t obligated to do mouth to mouth, and that if you aren’t comfortable with it, you can do straight compressions. Optionally, I can also include mouth-to-mask. For healthcare providers, I have to teach both mouth-to-mask and bag-valve-mask.

I am with Warren on this one. If a guy gets handsy a swift kick in the balls or punch or slap or elbow will probably shut that down. He probably won’t mess with you again. its not that complicated.

Probably not wise… but I’ll weigh in on the butt grabbing incident.
“One good stiff forearm to the face, and he was off to the ER. That is standing up for yourself.”
vs.
“By the time you’re bragging about “he didn’t try that again!”, you’ve well and truly missed the point that he’s already done it.”

As someone who has been both molested and assaulted in strikingly parallel attacks about a decade apart. Allow me to say the notion that it is immaterial that she shut him down because “he’s already done it,” is a hugely toxic notion.

Not so long ago, it was only considered game over when a child was inappropriately touched. But never considered game over when an adult woman was inappropriately touch.

Game over attitudes communicate to victims: “You will never escape being a victim. You will always be linked to this attack. You will be universally considered ‘damaged goods.'” People who hear the news of molestation typically have a huge shift in how they view and handle the victim. That is why I hid, and largely still hide, the molestation. Post Sandusky, I found out there are a huge number of people who hide being victims of molestation for the exact same reason. The only person that the fear and secrecy of being a victim serves is the attacker.

The parallel attack in college really boggled my mind and gifted me with some clarity. “That jerk groped me… He had no right to do that!” is a thought worlds apart from “I’ve been molested… OMG I’m *his* victim now.” I wasn’t afraid to tell. I told the first person who spoke to me saying “Hey, are you okay?” That person was one of my attacker’s friends. My attacker’s friends spread the news far and wide. The reaction when someone came to warn me about the danger on campus, and heard I was the person he assaulted was “Oh…then you know.” And talk of how the threat was being nerfed. I’ve mentioned the incident sometimes with details when relevant, and gotten little more than “Oh” and continuing discussions of how to deal with people like that.

Unlike being a molestation victim, being a woman who got groped once doesn’t change how anyone views me.
I don’t really want every single sexual, or possibly sexual touching to become fraught with ‘he’s already done it, nothing else matters’ like every instance and type of molestation is. I don’t want people to ever quit responding to the second incident with a bland “Oh” and a focus on the perp. I wish they would respond to the first incident that way.

So I’m glad Warren is proud of his daughter, and glad she is in an environment where she can be proud of herself. Sure beats the hell out feeling like a victim, instead of feeling like the strong woman she is. A woman who exposed a jerk to disapprobation, and may well have finally gotten a lesson about consent through his thick skull.

I just want to add, certainly we’d see a huge different between a guy who leans in for a kiss, starts in at it, and then stops when the woman says, “Uh, no way, dude,” and the guy who does the same, doesn’t take no for an answer, and continues to kiss/touch the woman against her expressed wishes. Or are we going to say, “Well, the damage is already done, so who cares if he listens to her no or not”? I certainly hope we don’t say that. There is a huge difference between a guy who makes a move that is unwanted but stops when the woman says no and a guy who ignores a woman’s no and keeps going, and I think it’s very dangerous to pretend that difference does not exist.

@James, but is prosecution the right way to teach these lessons? I absolutely do not think so.

“is prosecution the right way to teach these lessons? I absolutely do not think so.”
Me, either. The right way is for parents to instruct their children properly, with other authority figures as backstop, and prosecution as backstop to them.

Most people aren’t murderers, although they’re certainly capable of murderous thoughts (in my case, it’s on the freeway, at rush hour, and WHAT IS THAT PERSON DOING! $$#@! Drive your stupid car! Sorry, anyways…)
What keeps us from murdering people isn’t, in most cases, because murderers get prosecuted. What keeps us from murdering is that we have an internal value system that says murdering is not right, we would not like to be murdered, so we should not murder. But some people lack that, and so we still need to make murdering a prosecutable offense… for some, the punishment is deterrent enough, for some, the only thing that stops them from murdering is being locked up (and sometimes, even that is not enough.)

So, if you have an internal value system that says “people ought not to be touched unless they want to be (some exclusions apply)”, the fact that it is or is not prosecutable doesn’t make any difference, because we respect other people.and believe they have a right to decide how much touching they get and from whom. But some people don’t have that. Because they don’t already have that internal value (for whatever reason), they don’t act in accordance with it. So… IF we want to bring them into compliance (a big if) with the rule “don’t touch people who don’t want to be touched”, some mechanism of altering their behavior is going to be needed. Relying on people to handle it privately works for some people, but not all.

The challenge is to write statutes that capture all of the behavior that should be prevented, without also capturing some that should not. This is often a challenge in balancing between the rights of different people. Currently, you see legislators struggling to write effective statutes to cover revenge porn, and “upskirt” photography..

I completely agree with both of you, Havva and Anonymous Mom. I’ve worked in bars and clubs, hung out in strip clubs, served in the US Army, and attended more college parties than I can remember. As a female, I have been subjected to many unwanted advances and, what many would consider, sexual assaults. I guess some might consider me a victim and there were a few instances where the person in question could have definitely been charged with something had I chose to pursue such an action. I think the only person who can make you into a victim is yourself. I’ve gotten really sick of reading and listening to a lot of these “activist” groups trying to make women into victims.

However, I honestly believe that there is a strong, thick, unwavering line between bad judgement (especially where alcohol is involved) and criminal intent. In both my civilian and military life, I was surrounded by very good friends who happened to be male. Were there times that they might sexualize a woman in a club or on the street through comments? Of course, but they would also be the first ones to come to a woman’s defense if they felt that she was being mistreated by someone else.

One thing everyone seems to have forgotten in all this “feminist activism” is that women can be just as bad as men when talking about the other sex, getting drunk in a bar or party, etc.

“No, we make murder a prosecutable offense because society values life and believes that there must be a penalty for ending it. In fact, most murderers also believe that murdering is wrong. The vast majority of murders happen in the heat of some moment and not in a cold calculated fashion. Many murderers are extremely remorseful after the fact and would never kill again even if they never spent one day in prison. Others clearly have an internal value system that says murder is wrong, but engage in all sorts of mental gymnastics to justify their actions (describes a large portion of my clients actually).”

So, to sum up, there’s not much deterrent effect for the people on whom the deterrent effect did not work. Granted.
The fact that it’s illegal also seems to have not much deterrent effect on exceeding the posted speed limit.

Donna,

Well spoken. One thing I would love to see is people be honest about the death penalty. The death penalty is about revenge. An eye for an eye. It has absolutely nothing to do with being a deterrence. Not that I stand one way or the other on the death penalty, just wish the public would be honest about it.

“Well spoken. One thing I would love to see is people be honest about the death penalty. The death penalty is about revenge. An eye for an eye. It has absolutely nothing to do with being a deterrence. Not that I stand one way or the other on the death penalty, just wish the public would be honest about it.”

At the risk of setting off another firestorm, I think there’s a division roughly into thirds in most states in this country… one third favors use of the death penalty. One third opposes death penalty in all cases. One third is OK with executing some really bad people, BUT only if we’re really, really sure they’re actually guilty. They know that the legal system doesn’t have a perfect record with regards to obtaining truth, and they don’t want to be complicit in executing an innocent person.

So, you wind up with a system wherein death penalty is legal, BUT has a huge amount of mandatory appeals and legal process to make sure that the guy we want to execute is really, really guilty and not even a little bit innocent. Then it takes so long to run through all the mandatory legal process that the the defendant dies of natural causes before he can be executed*. A “death sentence” turns out to mean a “life sentence” only we pay a bunch of lawyers to get together and argue about it for years and years Until the convict drops dead of heart attack and ends the debate..

(*offer void in Texas.)

If you’re in one of those states that has the endless appeals, you might as well take the death penalty off the table, since the choice is really “life in prison” or “life in prison plus the state pays a bunch of lawyers to argue about killing you until you die anyway.”

“James,
SHUT THE HELL UP!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!”

I respectfully decline your invitation.

Punishment is also a deterrent to some career criminals. People who have a substantial criminal history, but suddenly stop committing crimes because they are tired of going to prison. Crime is a young man’s game. Much of that is just developing self control, but a portion is the deterrence of punishment. I do get a lot of “I’m getting too old for this shit.” And some will actually not come back at that point. But I don’t think our criminal justice system is really premised on the idea that if we send people to prison often enough some will eventually grow weary of it and stop committing crimes.

This law would be good for population control….

“criminals largely do not consider the potential consequences of their actions and choose to move forward despite them — something you would expect to see if prosecution had any real deterrent effect.”

Most criminals are not very bright. They tend towards medical but not legal mental illness, substance abuse, and general poor impulse control. So, you have a self-selecting pool of people on whom deterrence tends not to work. Most people are not criminals, they are capable of doing a risk/reward calculation that can be summarized as “if you can’t do the time, don’t do the crime.”
The deterrent effect (if any) doesn’t just depend on something being a crime, but also how often it is prosecuted and how often a suspect is even identified. Perception may be that certain crimes are not being prosecuted, changing the risk/reward calculus considerably. Take, for example, illegal entry to the country. There are people who’ll complain that illegal entry is being ignored, even though removals are at historic high levels. The perceived level of drug enforcement is poor, despite millions of incarcerations.

If you buy into “everybody has their price”, then the deterrent factor of criminal prosecution is what keeps people from becoming criminals… To quote from Doonesbury, “but the pension fund was just sitting there!”

“”But he hasn’t actually committed a crime, and therefore, needn’t fear getting punished for one.”
-> How would he not have committed a crime? That is exactly the scenario that is laid out by the article.”

Because the article offered you scare tactics (“if they pass this, you could be prosecuted…”, and you bought it, hook, line, and sinker.

.”-> So how do you suggest can a person reliably find out if a possible partner would turn into a vindictive psycho if the relationship doesn’t work out and needs to be ended? Please be specific.”
You need instructions on how to find out if someone is a vindictive psycho or not?