Is It Rape to Hold Someone's Hand Without Explicit Consent?
The Princess and the Pea's revenge
In the fairy tale The Princess and the Pea a princess is placed atop a pile of mattresses. Her exquisite sensitivity allows her and her alone to feel the pea underneath them all. You'd think that would signal to everyone: "Get away from that princess! She's impossible!" And yet she would appear to have become a role model for a culture that seems to value hyper-sensitivity as evidence of moral worth.
This brings me to an amazing essay by Judith Shulevitz in last weekend's New York Times titled, "Regulating Sex." Shulevitz clues us into the inner-workings of the American Law Institute, an invitation-only group of 4,000 lawyers who try to propose new laws. States and even Congress sometimes pass the group's suggestions whole hog. And now the ALI would like update our penal code when it comes to rape.
I suggest they call it the Princess & the Pea Code. (Or Princess and the Penal Code?) The group seems to be on the verge of endorsing the idea that every step in any encounter that could conceivably lead to sex must be explicitly agreed to by both parties. Let's first state that obviously, no one wants anyone raped, ever. Duh. But how far back in any encounter should we start regulating and punishing? And how fragile do we take our species for, when we state that any unwanted anything, even the grasp of a hand, is too much to bear and requires legal intervention? Shulevitz writes:
In a memo that has now been signed by about 70 institute members and advisers, including Judge Gertner, readers have been asked to consider the following scenario: "Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B's hand and feels a thrill as their hands touch. Person B does nothing, but six months later files a criminal complaint. Person A is guilty of 'Criminal Sexual Contact' under proposed Section 213.6(3)(a)."
Far-fetched? Not as the draft is written. The hypothetical crime cobbles together two of the draft's key concepts. The first is affirmative consent. 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. As the authors of the model law explain: "Any kind of contact may qualify. There are no limits on either the body part touched or the manner in which it is touched." So if Person B neither invites nor rebukes a sexual advance, then anything that happens afterward is illegal. "With passivity expressly disallowed as consent," the memo says, "the initiator quickly runs up a string of offenses with increasingly more severe penalties to be listed touch by touch and kiss by kiss in the criminal complaint."
The obvious comeback to this is that no prosecutor would waste her time on such a frivolous case. But that doesn't comfort signatories of the memo, several of whom have pointed out to me that once a law is passed, you can't control how it will be used. For instance, prosecutors often add minor charges to major ones (such as, say, forcible rape) when there isn't enough evidence to convict on the more serious charge. They then put pressure on the accused to plead guilty to the less egregious crime.
Rape law has everything to do with the escalating belief that people—especially children—cannot encounter the smallest whiff of discomfort or confusion without it harming them so severely that extreme measures are justified.
It seems to be this same conviction that lead the L.A. School District to remove master teacher Rafe Esquith from the classroom in March for making an off-the-cuff joke to his fifth graders that involved the word "naked." Oh no! A possible moment of discomfort! A frisson of impropriety! A joke becomes a crime. Once you believe that all kids are under constant threat from everything and everybody, everything and everybody becomes a threat that must be excised.
We are on such sensitivity overload that pretty soon we may criminalize almost anything that isn't a gold star and a pat on the head.
Wait! No! Not a pat on the head! What if it's a sexualized head touch? That could soon be a hanging offense, especially if it involves a kid.
Read more from Reason on this subject here.
