Got that? The reason it’s wrong to touch a woman’s breast or genitals against her will, as opposed to her shoulder, is because it might sexually arouse her.
Say that someone intentionally taps you on the shoulder to get your attention, or intentionally pats you on the back to compliment you, or even touches your arm in conversation or hugs you when parting. You might be slightly put off, at least under some circumstances, but the law would (and, I think, should) consider this to be well within the boundaries of permissible behavior. Not all unwanted touchings are batteries.Um, yeah. That last part—that the person doing the unwanted touching is getting off on it?—that’s kind of the whole issue. And is isn’t about the sexual arousal, per se, as much as it is that they have turned a woman’s body into community property to be used for their own gratification. Picarism, which is the compulsion to stick other people with sharp objects (like pins or needles) for sexual satisfaction, isn’t considered criminal because the picarist gets off on his behavior; it’s because it is an abuse of another person’s body for the pleasure. There have been cases of serial rapists who cannot penetrate their victims with their own genitals, because they are impotent in the presence of another person, therefore using instead an object to do the deed; is it not rape if neither victim nor rapist is sexually aroused? Historically, arguments were made in rape cases that any evidence of the victim’s sexual arousal could be construed as consent. Sex abuse has nothing to do with sexual arousal of the victim and everything to do with the uninvited invasion of another human’s private parts.
Say, on the other hand, that someone intentionally touches your genitals, or intentionally caresses your breasts (if you're a woman). In many circumstances, this would be considered a crime. Why the difference? I think that here too there is a connection with sexual arousal -- either the possibility that you might be involuntarily sexually aroused, or the likelihood that the other person is deriving some sort of sexual arousal from touching you.
When I use a term like “private parts,” everyone knows to which parts precisely I am referring, and there’s a reason for that. It’s because no one imbues breasts and forearms or genitals and shoulders with the same cultural meaning in terms of privacy. Bathing suits cover particular areas specifically because of our cultural regard for those areas. For the same reason, if some guy pulled off my baseball cap on the subway, it wouldn’t mean the same thing as if he pulled off a Muslim woman’s head scarf. It’s utterly disingenuous to pretend for the sake of an idiotic argument that all body parts, and every cultural understanding of all body parts, are intrinsically the same—except as whether their being touched has the capacity to arouse someone.
And, as an aside, Volokh conveniently leaves out of his argument the reality that having someone to whom one is attracted, and to whom one has given consent to be touched, the stroking of an arm or shoulder can also be sexually arousing. If some stranger brushes up against my arm in a store, my knees don’t go weak. If Mr. Shakes is sitting beside me on the couch and lets his fingertips drift slowly up and down my arm, it gives me goosebumps, and it’s only a matter of time before I drag him off for a good rogering. The truth is, just about any body part being touched has the capacity to elicit sexual arousal given the right set of circumstances, so right from the start, his argument that likelihood of arousal is the fundamental distinction between criminal and non-criminal touching is utter bunk.
But let’s go back to bathing suits for a moment.
I suspect nearly everyone is familiar with the method of conveying to children what is appropriate and inappropriate touching by using the example of a bathing suit. No one should ever touch you on the places covered by your bathing suit. For boys, that’s a signal that a stranger who tries to touch their genitals or buttocks is doing something wrong. For girls, it’s the genitals, buttocks, and breasts. Is Volokh seriously arguing that the reason we impart this information to children is because we’re worried about the children becoming sexually aroused? Or even just because we’re worried about the pedophile becoming sexually aroused? I suspect not. I suspect he would recognize that there are other issues at play here aside from just sexual arousal—issues about bodily autonomy, trust, safety, emotional health, appropriateness. Which means, then, he’s attempting to make the argument that sometime after puberty, women lose their right to not have the same body parts invaded on those principles; instead, we criminalize this behavior against adults only because of the possibility of sexual arousal.
The argument is a real heaping pile of horseshit, but it has a familiar ring to it, no? Something was niggling at me; I’d heard it somewhere before. When I considered writing a bit asking whether Volokh’s main concern, if a stranger grabbed his crotch, would be the possibility of his own arousal, it hit me. This is the fear of homophobes—that if a gay man makes an unwanted sexual advance, they will become “involuntarily” aroused.
I’m not making any thinly veiled accusations against Volokh’s sexual predilections. Honestly, I don’t even know what they are, and a cursory search of his site to see what he’s written on gay issues didn’t seem to reveal him to be some kind of rabid homophobe (although not stunningly gay-friendly, either). I’m just pointing out that we’ve seen shades of this very argument made before. It was dumb then, and it’s dumb now.
(More from Belle Waring and Ann Bartow.)