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 has become a role model…
For our country. A country that seems to value hyper-sensitivity as evidence of moral worth and goodness.
This brings us to an amazing essay by Judith Shulevitz in yesterday’s New York Times titled, “Regulating Sex.” Shulevitz clues us into the mullings of the American Law Institute, an invitation-only group of 4,000 lawyers who try to determine where the law should be going. States and even Congress sometimes pass its suggestions whole hog. And now it is trying to 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 for them to bear and requires legal intervention? Shulevitz writes (boldface mine):
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.
….It’s important to remember that people convicted of sex crimes may not only go to jail, they can wind up on a sex-offender registry, with dire and lasting consequences. Depending on the state, these can include notifying the community when an offender moves into the neighborhood; restrictions against living within 2,000 feet of a school, park, playground or school bus stop; being required to wear GPS monitoring devices; and even a prohibition against using the Internet for social networking.
We shouldn’t forget the harm done to American communities by the national passion for incarceration, either. In a letter to the American Law Institute, [Georgetown law professor Abbe] Smith listed several disturbing statistics: roughly one person in 100 behind bars, one in 31 under correctional supervision — more than seven million Americans altogether. “Do we really want to be the world leader of putting people in cages?” she asked.
Well as she’s pointing out, we already ARE the world leader in people caging. We’ve got the highest incarceration rate in the world. (For more on that, see my friend Sabrina Jones’ simply excellent “graphic retelling” version of The Race to Incarcerate.)
But the reason I am writing about the rape code on this site is because it has to do with the ever escalating belief that people — especially children — cannot encounter the merest 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 to 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 to be removed.
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! What if it’s a SEXUALIZED head touch? That could soon be as a hanging offense, especially if it involves a kid.
Or, perhaps, a pea.