Free-Range Kids

Is It Rape to Hold Someone's Hand Without Explicit Consent?

The Princess and the Pea's revenge

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Princess and Pea
Dreamstime

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.

NEXT: Is This Where Libertarians and the Gay Community Part Ways?

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  1. 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.

    I’m nominally for free association, but I also wouldn’t cry too much if the ALI were swarmed by SWAT forces serving a RICO warrant. If any group should be targeted for conspiracy, it’s an exclusive mafia of lawyers whose sole purpose is peddling law to Congressmen.

    1. Even up to 30 years ago the ALI was dedicated to consolidating case law into “Restatements” which can be helpful in parsing legal theories across states. Since then they’ve turned more and more to advocacy and trying to make the law itself, which is obviously problematic. Real shame, actually, as an organization that does what they used to do would be very useful.

  2. The obvious comeback to this is that no prosecutor would waste her time on such a frivolous case.

    Ms. Shaneen Allen would beg to differ.

    1. Also definition of tyranny in opposite of the rule of law. Laws that will be broken by everybody but only enforced on some is a way to punish the disfavored.

  3. It’s always rape, always.

    1. The term rape just has so many negative connotations. I prefer to call it surprise sex.

  4. Does this mean that sexy time will become rapey time?

    1. Doncha know that your comment is an example of rape culture? So is the word “sexy” when it’s men describing women.

  5. I don’t think it’s rape rape. But I’m not sure any more.

  6. Oh no! A possible moment of discomfort! A frisson of impropriety! A joke becomes a crime.

    Why elide the tough case? Tim Hunt’s mild joke was removed from context and used to bludgeon him out of career and public life on the premise that even hinting at the uncomfortable reality of sexual dynamics in the workplace will injure the delicate sensibilities of vulnerable young women who are nonetheless fierce, tough-minded realists ready to tackle the hard sciences. Who benefits from dragging an accomplished scientist through the mud on a matter of taste rather than credibility? And how does it benefit young women to observe a harmless truism about work life morphed by humorless harpies and their media attach?s into a reason for having serious misgivings about entering the field? Let’s not pretend these people or their laws have any intention to protect women. They’re primarily about punishing men.

  7. If this idiocy becomes law, the US will have become as stupid and fucked up about sexual matters as the Taliban-controlled tribal areas of Pakistan, albeit in a slightly different way.

    I suppose there will even need to be trigger warnings whenever someone plays the early Beatles hit, “I Wanna Hold Your Hand.” Or, perhaps that kind of decadent music will just be banned.

    1. I feel about these things somewhat like I feel about traffic laws — go ahead, enforce speed limits and stop signs with automated unappealable cameras. Add lane changes without signals, anything you want. But do it without exception. No excuses of any sort. See how long before the pitchforks come out.

      What really sucks about these laws is the discretionary enforcement. There are only two ways to eliminate the corruption which is inevitable with government prosecution: absolutely rigid enforcement which would cause rebellion were said laws to be enforced, or victim prosecution with the added proviso that the prosecutors can be found guilty of malicious prosecution.

      Government prosecution is the real evil here.

      1. But do it without exception

        1. The typical counterargument from prosecutors (*spit*) is that they simply don’t have the resources, so they must choose.

          I wish some judge with balls of steel would argue that unless a legislature authorizes the funds and manpower to investigate and punish all violations of a given statute, the statute in effect violates equal protection.

          1. I’d like it considered a defect in a law if not consistently enforced, and that includes all the crimes not even investigated. If only 1% of murders, or even only 10%, were solved, I’d consider that grounds for throwing out the law.

            Of course, that’s only necessary when government prosecutes crimes. If only victims (or their guardians) could prosecute, it wouldn’t be a problem.

            One of the things that turns rule of law into rule of men is the situation we have today, where everyone is guilty of numerous crimes every day, which lets mere men choose who to prosecute.

    2. Doubling down on this, we will have legal arguments over the fact did she, or did she NOT actually agree to holding hands. Is there proof of her (or him or whichever pronoun the victim is as we have a lot of pronouns now) agreement to said hand holding?

      What a world we’ve created for ourselves.

    3. “she’s just sixteen years old, leave her alone, they saiiiiidddd…..”
      –B. Mardones

  8. Prudery knows no political bounds. A century ago it was the “progressives” with prohibition and Comstock. Then the 50s began the “conservatives” that culminated in the 80s with the “Moral Majority” and Falwell et.al. Now the pendulum has swung back to the lefties. At least most of the Socons I know personally really don’t care what others do in the privacy of their own home, regardless of how “sinful” some behavior may be to them.
    These lefties are the folks that equate some 22yo babe who voluntarily strips or appears in porno to the muzzies who kidnap 9 yearold girls and sell them to be sex slaves.

    1. American Law Institute is a castle of tyrants first- prudish and/or asexual second.

      Their aim is to rewrite human behavior through state violence. Interestingly, the fucking fools who have created the legal definition of the finger shield even when subjects are passive will employ the brutality of the state to impose its will on a largely passive and unaware society.

    2. the muzzies who kidnap 9 yearold girls and sell them to be sex slaves.

      And the left had to make them up because said sex slavery doesn’t even exist.

      Of course, the left insists on making 60-year old Japanese people apologize for stuff that happened in Japan 70 years ago and blames the right for the inability of Dem-controlled cities to understand mathematics.

  9. 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).

    The “survivor” club will probably be able to collect more dues.

    1. shaking hands + gay rights = rape

  10. It was years ago. I shudder with emotion – my body gripped with fear – as I remember. I was at the bar. It was raining outside. Little did I know that my own eyes would soon be streaming with tears. There were three women with me. We went outside to get into the car. Thunder tore through the air. One of the girls grabbed my hand without permission. I didn’t know what to say. I could only cringe as I felt my soul being ripped asunder like so many others before. When will women learn not to rape?

    1. Not you too!

    2. “When will women learn not to rape?”

      Almost all of them are incapable of it according to the modern feminist and the remaining fringe will be sterilized of their touchings through the coming progressive burga.

    3. Were you literally figuratively crying?

  11. The American Law Institute is on a rampage to erase sexual intelligence from society- these nihilistic tyrants have over-criminalized human behavior already to the point that modern governance is becoming a cesspool of human rights violations.

    The burqafication of American sexuality is coming to a sidewalk near you, thanks to the American lawyer. What a shit pyramid this is.

    1. Fortunately, lawyers are not smart enough to program AI. Our new robot overlords will take care of them. Bwaahhahhaaaaa, bwahhhaahhaaaaaa……

  12. I for one, will welcome our new robot overlords, because there’s no way they can be as stupid as humans.

  13. This is just taking standard workplace norms under “sexual harassment” and “hostile environment” rules out into public.

    In the workplace, men had better not touch women, had better not compliment women, had better not make any kind of non-work-related comment to a woman, etc. in case it is misconstrued. From what I can tell, this is all pretty much the same stuff.

    1. I understand that business is the great love call of the good folk in these here parts but the range of human behavior limited by corporate ethics manuals is tantamount to on-site tyranny and the reason most workers tolerate this iron-fist is because they can leave the corporate dungeon behind every day and go where life is real and placid and humans can be humans.

      Relief lies past the fucking sign on the front lawn.

      Bringing rigidity from the corporate world where one is simply fired for infringement to a real world implementation where one can now be imprisoned for years and placed on a sex offender’s registry for misconstrued minor bullshit is ‘not pretty much the same stuff’, man.

    2. We have those exact same rules, like most other corps as you mentioned. But those rules exist because the employers can get sued into oblivion.

      Ergo, it’s all your fault!

  14. For lawyers, criminalizing things is the easiest way to drum up business.

    1. We have a winner

  15. I have to say, if this does go through, I see some massive potential for douchebaggery from MRAs, at least the ones that can attract a woman’s attention. Either they get lots of innocent, horny women sent to jail and make the law look like the work of retarded monkeys (or SJWs, but I repeat myself), or they get courts to explicitly define different protections for men and women, setting up a legal framework for pushing back on women’s rights in general.

    1. Damn my having a real job. Otherwise I could have a lot of fun if they passed this law. Get a video recorder and skip on down to the local Dem meet and greet. Wait until I have proof on a good ten or so then file charges in mass. Might drive a wedge between the local feminists and democrats.

      1. These are criminal charges. The local DA wont prosecute (being a dem) anyone but you.

      2. You misunderstand how this works. Men are subjects, women are objects. Women can’t initiate, only men, so when her hand touches yours, it’s really your hand touching hers. Therefore, you have committed the crime and she is the victim. The prosecutor will be glad that a card-carrying “rapist” has turned himself in with incriminating video footage.

    2. Either they get lots of innocent, horny women sent to jail and make the law look like the work of retarded monkeys (or SJWs, but I repeat myself)

      The women wouldn’t even have to be horny, given the ridiculous standard of proof that the law would call for. A woman who gives you a hug out of simple compassion or gratitude could be accused.

  16. R C Dean,

    Unless they’re Tom Brady.

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  18. And good luck getting a discussion of sexual assault law in your average law-school classroom. *Way* too contentious and triggering.

    1. It happened in my property class… it’s was really fucking uncomfortable. I know that my politics were shared by some in the room, but I knew that there were people in that room who would excommunicate me from their social group over such a topic.

  19. “There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.”

  20. What about a simple handshake? Is that still okay?

    1. Nope. Bow.

    2. Just don’t think about sex while you’re doing it.

      1. I blame the jerks who kept complaining about hate crime statutes. “Aren’t all crimes hate crimes? You wouldn’t make a love crime, would you?” Well, yes, apparently they would, thanks for giving them the idea.

  21. “I wanna hold your ha-a-a-a-and
    But I don’t wanna go to prison”

    “I’m afraid those lyrics need work, John.”

    1. “I wanna hold your ha-a-a-a-and
      So please sign here and here on this consent form.”

      “Blimey, John, stop dicking around.”

      1. stop dicking around

        Dammit Eddie, trigger badfeel warning please!

  22. Sounds the herd needs a cullin’. Im going to have to hit submit again so will prolly post twice.

  23. Jack and Jill went up the hill now Jacks doing 20 to life.

  24. You know, in real life, women don’t like that stuff — would it be okay if I were to hold your hand? — they don’t like that. And if you should happen to find yourself involved with one who does, my advice could only be: run.

  25. with sexual gratification in mind

    Thoughts: They can be crimes too!

  26. In a related matter, these new affirmative consent laws (NY, CA) that require ongoing affirmation of consent every step of a romantic encounter are only for the college kids.

    These legislators would never want the same laws for themselves or the people who’d vote them out if they enacted such a law.

    The worst part about it is that it puts the accused in the position of having to prove he (almost always) had consent.

    So…… how could anyone prove that when asked if only other witness was the person stating they did not have consent.

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