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

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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.

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"May my five digits touch your five digits?"

“May my five digits touch your five digits?”

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

  1. Powers June 29, 2015 at 10:33 am #

    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?

  2. JdL June 29, 2015 at 10:53 am #

    @Powers:

    This is ridiculous overhype.

    I very definitely do not agree.

    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?

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

    If person A takes person B’s hand and person B doesn’t want to have his/her hand held, all that needs to happen is for person B to withdraw the hand and if necessary add some words that it’s unwelcome. We don’t need Big Brother in the form of overbearing, overreaching government, to stick its big fat nose into the picture.

    Your obsession with other people’s supposed fetishes is very unhealthy, IMHO. It says much more about you than about the people you’re afraid of.

  3. Puzzled June 29, 2015 at 10:59 am #

    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.

  4. Ben June 29, 2015 at 10:59 am #

    Powers – How in the world do you propose to criminalize entirely innocent/legal behavior based solely on whether an individual subjectively “gets off” on it? I find that both insane and terrifying.

  5. Jens W. June 29, 2015 at 11:05 am #

    @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.

  6. Anna June 29, 2015 at 11:09 am #

    Puzzled: “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. ”

    Very well said! That’s quite illuminating.

  7. Opal June 29, 2015 at 11:39 am #

    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.

  8. Joe June 29, 2015 at 11:41 am #

    Powers: who determines what people “have in mind” based on this action? “Activists.”
    We aren’t talking about rules of conduct at Bobbyhatch-Loony-U, we’re talking about LAW.

  9. Cynthia812 June 29, 2015 at 11:43 am #

    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.

  10. Mark Davis June 29, 2015 at 11:44 am #

    Powers:

    “The romantic holding of a hand in no way constitutes sexual gratification.”

    You have a very narrow view of sexual gratification. It is more than intercourse and fetishes; it has countless forms and expressions, and is different for every individual. Most of these are healthy, some are not, but the line drawn by this proposal is most definitely attempting to criminalize behavior that is healthy and normal.

  11. anonymous mom June 29, 2015 at 12:00 pm #

    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.

  12. ertdfg June 29, 2015 at 12:05 pm #

    ‘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?’

    Absolutely. We’ll need to forcibly and seriously interrogate every person in the country; so we’ll KNOW what they find sexually gratifying; as we can’t read minds.
    Then we can outlaw the actions behind their thoughts explicitly; as we clearly WANT thought crimes.

    Your waterboarding is scheduled for Thursday of next week; show up on time so they can find out what you find sexually gratifying in order to apply the law you want as you require.
    Don’t worry; the interrogation is only scheduled to take 6 weeks; 7 at the outside.
    You wouldn’t want them to miss anything, would you?

  13. anonymous mom June 29, 2015 at 12:12 pm #

    @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.

  14. Warren June 29, 2015 at 12:18 pm #

    These lawmakers obviously did not raise daughters.

    My girls have talked with me about all this consent crap going on today. From the new trend of saying alcohol voids the ability to give consent, to girls lying about there age and getting guys in trouble.

    Both my girls agree that this is saying the following.

    All women are weak.
    All women are victims.
    All women are stupid.
    All men are predators.

    My oldest nailed it. When a daughter comes home from a date, this is the scenario.

    Daughter: “Hey Mom I am home.”
    Mom: “How was it?”
    Daughter: “Great, we danced had fun. He even worked up the nerve to kiss me goodnight.”
    Mom: “Did he ask your permission first?”
    Daughter: “No. He just sort of leaned in and kissed me.”
    Mom: “No no no, he has to ask first. That is the law. I am calling the police.”

    I agree with my daughter, but asked her, just to hear her answer. Would it really be horrible if he did ask permission first. Her answer nailed it, “Yes it would sort of take away from the moment. The anticipation, the mood. If I don’t want it, I just back off and leave it at that. If he still goes for it, he gets slapped.”.

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

  15. Richard June 29, 2015 at 12:21 pm #

    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.

  16. SOA June 29, 2015 at 12:22 pm #

    It would only be some kind of assault if the person said “NO” and tried to pull away physically and you prevented them after that from doing so.
    I get yelled at a lot by women but I don’t think it is rape if you never resist or say “no’ and there was no weapons or force. Just laying there and saying nothing and doing nothing, is not rape. That is passive resistance but not rape. We need to teach our women to speak up for themselves and say “Get the hell off of me you asshole!” That was how I was raised and men never never mess with me. I think they know “This bitch will cut my dick off if I try anything”.

    Why are we advocating our women to not be bitches? I don’t have a daughter but if I did I would tell her to speak her mind any chance she gets and take no crap off of anybody. That is how winners are raised. That is how you get girls who stand up to unwanted sexual advances.

  17. Richard June 29, 2015 at 12:22 pm #

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

  18. anonymous mom June 29, 2015 at 12:26 pm #

    One of the most pernicious things about “Yes means yes” is that it basically says that a woman’s “no” has no power. It doesn’t matter whether I passively go along with a sexual encounter or if I’m resisting and yelling “No” the entire time. My resisting and my “no” are no different from my passive acquiescence in this view. That is a horrifying denial of women’s power.

    That any of this passes under the guise of “feminism” is insanity. I remember back when feminism was about women’s agency, not women’s victimhood. It’s ironic that as young women have more power than they ever had in any society in history, they are suddenly less capable of sexual agency than their grandmothers and great-grandmothers were.

    The reality is, if you are hanging out with a guy you know (or a guy you are dating) and you don’t say no to a sexual encounter, assuming he is not threatening you, you are not saying no because you actually don’t mind what’s going on enough to do so. And if you don’t mind what’s going on enough to say no, then you don’t get to decide six months or nine months or 18 months later that you mind enough to file criminal charges against him.

  19. anonymous mom June 29, 2015 at 12:28 pm #

    @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.

  20. James Pollock June 29, 2015 at 12:32 pm #

    You’d be amazed at the things that can be charged as “sex abuse” NOW. (Hint: They’re a long way from anything that involves “sex”.)

  21. SOA June 29, 2015 at 12:32 pm #

    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.

  22. John June 29, 2015 at 12:35 pm #

    America is getting extremely prudish by the year when it comes to sex and children but the opposite seems true with adults. Now, we’re much more tolerant of homosexuality and have accepted gay marriage as the norm and there is so much more advertisements on billboards with sexual connotations than there was years ago and the same seems true with TV advertisements. Physically fit looking men with their shirts off and young and attractive looking women in bikinis. But heaven forbid, we cannot allow any person who is 17 years-364 days-23 hours and 59 minutes old to have any involvement in this because it might scar them for life. So we enact these crazy knee jerk laws for the “protection of kids” when all they do is cause more collateral damage than they’re worth.

    What it boils down to is politicians gunning for cheap votes under the platform of “If I get elected, there’ll be no more coddling of pedophiles (as if there ever was) and they are gonna start paying for their crimes with stiffer sentences! Zero tolerance!” So after each subsequent term, the laws and restrictions keep getting stiffer and stiffer and stiffer to the point where even a simple wink or pat on the head of a young child will get you into a world of trouble. It’s getting really crazy in America.

  23. Resident Iconoclast June 29, 2015 at 12:36 pm #

    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.

  24. mer June 29, 2015 at 12:40 pm #

    “yes means yes unless it means no but I was too traumatized to say no because I didn’t want to hurt your feelings”

    Since these “consent” laws seem to be predicated on “women are too weak” (plus everything in Warren’s post) what happens if the encounter is female-female? Or is it still somehow the fault of the patriarchy?

  25. anonymous mom June 29, 2015 at 12:41 pm #

    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.

  26. SOA June 29, 2015 at 12:42 pm #

    Warren mocked me for saying I want my sons to card their dates and get confirmation on camera of their consent but honestly that is what it is coming down to if you want to 100% guarantee your son does not go to jail for a long time for trying to kiss their girlfriend.

  27. Montreal Dad June 29, 2015 at 12:44 pm #

    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…

  28. SOA June 29, 2015 at 12:45 pm #

    I agree 100% anonymous mom.
    If we can’t tell a creep to get his hands off our ass how can we be President or CEO or run our own business?

  29. anonymous mom June 29, 2015 at 12:48 pm #

    @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.

  30. M June 29, 2015 at 12:54 pm #

    I miss the feminist empowerment of the 70s and 80s.

    “I am woman hear me roar!”
    “I’m a woman, W.O.M.A.N!”
    “I will Survive!”

    Back then, have sex and enjoying it was empowering.

    Now we are back to Victorian times. Every woman is a precious untouched flower that could be crushed and ruined by the slightest touch. She must be protected at all times!

  31. JulieC June 29, 2015 at 12:57 pm #

    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.

  32. James Pollock June 29, 2015 at 1:14 pm #

    “They are based on the presumption that women lack the agency to say “no” to sexual contact they don’t want.”
    I don’t think this is the case at all. Rather, I think these types of laws reflect the thinking that a person shouldn’t have to wait until after someone does something to say “no, I don’t want you to do that”

    Compare to another type of law… assault and battery. Some people do consent to allowing other people to hit them in the face as hard as they can. But the default answer to “is it OK if I try to hit you in the face as hard as I can” is “no”, and if someone has to actually ask and get a positive response before we let them off the hook for battery, do we say that this is based on the assumption that people lack the agency to say “no” to being hit in the face?. Or does it simply reflect the view that nobody should be hit in the face that doesn’t want to be hit in the face?

    “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.”
    The biggest challenge around rape and related issues is that so much is dependent on reading subtle cues and nonverbal communication, and some people are better at reading people than other people are.

    We know that a sexual encounter must have, at some point, someone who makes the first move, a move which at least signals “Are you interested?”, and a response from the other party that says, “Yes, I *am* interested, thanks for asking.” So the problems that can arise are:
    1) the initial request may be in a form that is itself unwelcome.
    2) A no may be misread as a “yes”.
    3) A no may be misread as “net yet, but keep trying”

    Anyway, we KNOW that the current legal approach is deeply unsatisfying to some. Since the only witnesses tend to be the immediate participants, with one saying “you gave permission for that” and the other side saying “no I did not”, you end up with a lot of uncharged rapes, and some number of false accusations that will also go unpunished. These are lawyers, trying to find a way to make the law work better. They’re trying to standardize the signaling, so that it’s more obvious to an outsider just what permission was given. If the accused is required to produce a signed permission slip to claim that they had permission to do what they did, then either they can produce the slip or they can’t. This works in other contexts (if you go down to the gym and sign up for MMA classes, they’re going to make you sign a form that you understand that MMA can involve being hit in the face. This comes in handy if you try to later sue them, because somebody hit you in the face.)
    No, it’s not perfect (people can give permission, and then revoke it, so even someone who can provide a notarized signed permission slip may be rapist) and no amount of tinkering with the law is going to eliminate conflict between people. But people who are serious about the law will always be tinkering with it to try to make it better, and that’s a good thing, even if you don’t agree with some of the changes suggested.

  33. Reziac June 29, 2015 at 1:17 pm #

    “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.

  34. Sharla June 29, 2015 at 1:33 pm #

    The middle school my kid just graduated from has a “no hugs” policy. They said that hugs were like a “gateway drug” to other, more inappropriate contact. My theory was that they implemented that policy because it was easier than teaching kids about consent, how you shouldn’t touch someone who doesn’t want to be touched. While the explicit consent for every touch thing is kind of ridiculous, I still think it’s better than telling kids they can’t touch each other. It’s important to teach kids not to touch people who don’t want to be touched instead of banning them touching each other, which teaches them nothing.

  35. LTMG June 29, 2015 at 1:34 pm #

    Puritanism and Victorianism are growing in weird directions.

  36. anonymous mom June 29, 2015 at 1:35 pm #

    James, you are incorrect. This is *absolutely* about women’s agency. Do you have any knowledge of the “yes means yes” and “enthusiastic consent” movements from which these laws arose? They have nothing to do with the idea that we need to preemptively stop people from being touched for even a moment in ways they don’t like and everything to do with the belief that women are socialized in such a way that many are incapable of saying no to sex they don’t want.

    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. So if we treat giving a person a kiss the same way we treat punching somebody in the face, we are suddenly redefining sexual encounters in ways that do not in any way align with how most people in the world actually engage in them.

    A better example would be deciding that if you went out with somebody reluctantly, they kidnapped you absent clear, affirmative consent. So, if you were kind of half-hearted about hitting the bar with your friends, and they cajoled you into it, and you just kind of passively went along with it, you would be able to charge them with kidnapping. But, that would obviously be absurd, because the vast majority of the time when people go out together, all are doing it of their own free will, even if one party is less enthusiastic than the other. Having sex is much more like going out to dinner with friends (a typical part of daily existence that many people willingly engage in regularly) than like being punched in the face. I have actually NEVER had anybody punch me in the face, but I’ve had sex and gone out to dinners many, many times. And every single time has been consensual, even when I was less-than-enthusiastic about it.

    But, anyway, I would suggest doing some reading on “yes means yes” and “enthusiastic consent.” It all comes down to the belief that women are socialized in ways that make them unable to say no to sex they don’t want–shocking, given how many of us today are fully capable of doing so and how many of our grandmothers and great-grandmothers and great-great-grandmothers could–and so we need to put the onus on men to make sure that their partner is not just affirmatively consenting but doing so enthusiastically because women cannot be trusted to state their own sexual needs or desires.

    “Enthusiastic consent” is clearly a concept developed by somebody in their 20s who has no children. I enjoy sex a great deal, but I’ve got four kids, three of whom are under 6, and other than naps and long baths, I have not consented “enthusiastically” to anything since around the time Obama took office.

  37. Robert Monroe, Jr. June 29, 2015 at 1:39 pm #

    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.

  38. anonymous mom June 29, 2015 at 1:41 pm #

    @Robert Monroe, but they said that *all* hetero sex was rape. Today’s activists just believe that *most* of hetero sex is rape. Difference, see?

  39. En Passant June 29, 2015 at 1:48 pm #

    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.

  40. James Pollock June 29, 2015 at 1:58 pm #

    There has always been a power gap between the sexes. Some of that is based on actual differences, and some of that is based on cultural norms.

    Over the last two or three generations, there has been a huge increase in opportunity for women. The notion that a woman might want to be (a doctor, a lawyer, an engineer, a brick-mason, a heavy machine operator, an athlete) and might even be good at it no longer shocks us. What has historically held women out of the professions and trades has not been an inherent lack of ability to do them, but the fact that child-bearing would, or could, interrupt them. What’s the point, said society of 1920, in admitting a woman to a medical school when she’s just going to meet a man, get married, and start having children instead of practicing medicine? We can give that medical school slot to a man, who might have children, but will put practice of medicine first (because, of course, any children he has have a mother to care for them.)

    Recognizing women as equally capable leaves us with an unresolved question, however… they’re still not actually equal. Reproduction for a male person takes minutes, for a female person, months. Female persons are natually equipped to feed infants, and male persons are not. So we have almost-but-not-quite equals. The real difference in reproduction creates a situation where, basically, the female picks whom to have reproductive activity with, even though both have personal agency.

    At first, the rise in opportunity for women just meant that they had more to do. In the old scheme, the man went to work and provided an income, the woman stayed at home and did all the work of maintaining the household. In the new scheme, nothing changed for the man, for for the woman, she now went out and provided an income, then came home and did all the work of maintaining the household (the so-called “second shift”). We’ve spent a generation or two sorting that out.

  41. James Pollock June 29, 2015 at 2:20 pm #

    “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.

  42. JJ June 29, 2015 at 2:29 pm #

    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.

  43. Warren June 29, 2015 at 2:43 pm #

    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.

  44. James Pollock June 29, 2015 at 2:45 pm #

    There’s a range of behaviors that ranges from looking at someone else all the way up through full-on unrestrained sex.

    The question is… how far down the line should a person be allowed to go before pausing to make sure that what they’re doing is welcomed.

    There are people who’ll argue that just looking at someone without their permission is a violation of that person. There’re some that will argue clear sailing until you get interrupted by a clear and unambiguous “no”. Most of us are somewhere in between.

    Current sex abuse law makes touching specific parts of the body for purposes of sexual gratification criminal, even if clothed. The current attempts to criminalize “upskirt” photography runs into the same sorts of problems; trying to draw a clear, unambiguous line that has all things that “should” be criminal on one side, and all things that “should not” be criminal, on the other side of the line.

  45. Diana Green June 29, 2015 at 2:56 pm #

    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?

  46. Anna June 29, 2015 at 3:06 pm #

    James Pollock: Count me in with those who consider your analogy ridiculous. Punching someone in the face is by nature and by default an act of violence and aggression, so that very unusual circumstances are necessary to make it NOT assault – e.g., you’re having an official fighting match of some kind.

    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 it turns out they’re violently against human contact and they tell me so, I’ll desist. But if I brush their hand by mistake – or even have one of those awkward, one-sided hand-shakes before realizing they didn’t want it – that wasn’t assault. Similarly, if a grown-up offers my toddler a high-five, he doesn’t need to request permission first, although my son would be free to draw back and decline. Somebody playing pick-up basketball doesn’t need to get expressed permission before patting a team-mate on the back in congratulation. And I’m not a social hugger, being Canadian, but my American acquaintances who great me that way are not assaulting me.

    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. 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. This sort of thing is exactly the reason we should NOT make laws based on how lawyers would like them.

  47. James Pollock June 29, 2015 at 3:22 pm #

    “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

  48. Harrow June 29, 2015 at 3:39 pm #

    JJ, JJ, JJ. Where do you think all those free range kids are going to come from?

  49. James Pollock June 29, 2015 at 3:51 pm #

    “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…

  50. Brooke June 29, 2015 at 3:54 pm #

    The information provided is insanely skewed to present a false depiction of what RAPE convictions look like in the US. According to RAINN the majority of rape cases are never reported, of those reported cases the majority of rapists never serve a single day in jail. Our high incarnation rate comes from drug convictions, not rape cases.

  51. Cassie June 29, 2015 at 3:59 pm #

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

    I wholeheartedly agree.

  52. anonymous mom June 29, 2015 at 4:15 pm #

    A theoretical discussion of what does or does not constitute battery in common law might be interesting.

    But, let’s remember where we are. We are a country that loves nothing more than to lock people up and register them for life, for anything we can. We love to expand what is considered criminal.

    That’s why, for example, while I might agree in theory with a European-style law against spanking, I would NEVER want to see it in the U.S., because instead of responding with support and education, we’d take people’s kids away and lock the parents up. In theory I am not at all a libertarian, but when it comes to actual practice in the U.S. I am, because we just take everything way too far.

    And that’s why these laws are dangerous. Because whether or not “affirmative consent” is a good moral ideal for sexual relationships, or something we want to encourage–and I tend to disagree on both counts, but that’s obviously debatable–we will unquestionably apply it in draconian ways that end up landing men who did nothing wrong on registries or in jails while people who commit more serious sex crimes go unprosecuted and unpunished. Because these convictions will be low-hanging fruit, and that tends to be what prosecutors go for.

  53. James Pollock June 29, 2015 at 4:25 pm #

    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.

  54. James Pollock June 29, 2015 at 4:38 pm #

    “A theoretical discussion of what does or does not constitute battery in common law might be interesting.”

    It’s part of the first-year law course, torts. Grouped in with the other “intentional” torts, which occupy maybe 20% of the course (negligence and the defenses to negligence is about 75%, with the rest strict liability.)

    You start with the general rule that any touch you don’t want is battery, and then run through some defenses. There’s a little bit of exploring the outside edges (knocking your hat off with a snowball is a battery, even if no snow touches you.) Then, boom, you’re on to assault or trespass or false imprisonment.

  55. Sarah June 29, 2015 at 4:38 pm #

    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.

  56. Powers June 29, 2015 at 4:39 pm #

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

  57. BL June 29, 2015 at 4:52 pm #

    “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.

  58. BL June 29, 2015 at 4:54 pm #

    ” If only there were, say, someone who had the power to sort out what should be on this blog, and what should not.”

    I’m sure the American Law Institute will get around to that next year.

  59. Anna June 29, 2015 at 4:54 pm #

    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.

  60. JulieC June 29, 2015 at 4:58 pm #

    I believe James said he’s not an attorney.

    He just plays one on this blog’s comment section!

  61. Anna June 29, 2015 at 5:09 pm #

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

  62. Jessica June 29, 2015 at 5:16 pm #

    I remember meeting with an ex-boyfriend once after he had returned from deployment, supposedly as a friends thing, but it turned out he had recently been dumped and was on the rebound. We were sitting in the car and he leaned over to kiss me. I gave him the cheek. He dropped me off at home and never called me again. Should that kiss be criminal because I didn’t want it? Or should we understand that the vast majority of people have or should have the capability to say no, especially when it comes to non-sexual contact such as this? I know there are exceptions, but the idea that I need the government to tell me when I don’t want someone to kiss me or hold my hand is laughable at best, and a terrifying overreach with horrible repercussions at worst.

  63. James Pollock June 29, 2015 at 5:17 pm #

    “‘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.

  64. Warren June 29, 2015 at 5:20 pm #

    Powers,
    Sorry too many times we have heard that under the law there is no such thing as implied consent.

  65. Dhewco June 29, 2015 at 5:21 pm #

    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.

  66. James Pollock June 29, 2015 at 5:21 pm #

    “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.”

    We don’t exclude lawyers per se, but they tend to get excused during voir dire because lawyers are likely to recognize that evidence is “missing” from a case, and therefore deduce the existence of excluded evidence. They’re also more likely to pay attention to the procedural aspects of the trial, and not enough to the evidence presented.

    In any case, I’m an IT administrator… fully eligible for jury service.

  67. olympia June 29, 2015 at 5:22 pm #

    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.

  68. Warren June 29, 2015 at 5:23 pm #

    Anna,
    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.

    Therefore he is either lying about his name and credentials, or he was an attorney. Why he isn’t one now is anyone’s guess. I am thinking fired for utter ignorance.

  69. Warren June 29, 2015 at 5:25 pm #

    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.

  70. BL June 29, 2015 at 5:28 pm #

    ” If only I’d thought to mention the many defenses to battery”

    Oh, goody! So I have a chance of winning in court! Of course, the attorney payments for any criminal case are enough to pauperize the average person, myself included. But at least I’ll be acquitted. Maybe.

  71. James Pollock June 29, 2015 at 5:45 pm #

    “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.

  72. Donna June 29, 2015 at 5:47 pm #

    ‘”A theoretical discussion of what does or does not constitute battery in common law might be interesting.’

    It’s part of the first-year law course, torts.'”

    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.

    That said, battery is basically “any offensive touching.” There are not a bunch of defenses to battery in criminal law. Just the standard criminal law defenses – consent, accident, mistake of fact, justification, reasonable parental discipline, self-defense, defense of others, insanity. And, yes, I’ve seen some pretty weak sexual battery cases. Cases that don’t amount to much more than handholding.

  73. Donna June 29, 2015 at 5:52 pm #

    “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.

  74. James Pollock June 29, 2015 at 5:53 pm #

    “Don’t worry, any lawyer would see through James BS and avoid him as a juror at all costs.”

    Actually, it didn’t get me out of jury duty.
    My county has “one day/one trial” jury duty. You come in at the beginning of the day, and they send you to a jury panel when you might get picked to be on the jury, or you might get excused. If you don’t get put on a trial, your jury duty is completed and you may go home with your $35 in jury pay. If you DO get picked for a jury, you serve until the end of the trial, however long that takes.
    Well, it turns out that I’d been summoned on a day when all the county’s prosecutors were attending a conference and thus had not scheduled any trials to start that day. However, a city prosecutor had a case scheduled. Anybody who was not scheduled for that one trial would be sent home immediately after watching the video about how important jury duty is and why every citizen should take it seriously.
    Yep, you guessed it. I was put on that panel, and I was the first juror seated.

    The only other time I’ve ever been summoned for jury duty, the parties settled literally on the courthouse steps and the trial, scheduled to start an hour later, was cancelled. We didn’t even have to watch the whole video that time… they came down and dismissed us as soon as the judge was notified that they’d settled.

  75. James Pollock June 29, 2015 at 6:05 pm #

    “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?
    http://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?
    http://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.

  76. Chuck99 June 29, 2015 at 6:13 pm #

    Here’s the thing that bothers me the most – with sexual gratification in mind. That’s what we call ‘thought crime’. The only way the action is criminal is if you assume you KNOW what the person had in mind. There are already laws like this on the books – no more reasonable doubt, no more innocent until proven guilty. You make up a law that requires a certain state of mind, then just assume that state of mind existed at the time.

  77. SOA June 29, 2015 at 6:27 pm #

    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.

  78. James Pollock June 29, 2015 at 6:30 pm #

    “Here’s the thing that bothers me the most – with sexual gratification in mind. That’s what we call ‘thought crime’. The only way the action is criminal is if you assume you KNOW what the person had in mind. There are already laws like this on the books – no more reasonable doubt, no more innocent until proven guilty. You make up a law that requires a certain state of mind, then just assume that state of mind existed at the time.”

    I hate to tell you this, but nearly all criminal law has an element that requires a certain state of mind. There’s even a fancy legal (Latin) term for it, “mens rea”.

    That said, “for sexual gratification” means that it’s something the prosecution has to prove, with evidence. For example, in my state, public nudity is not a crime, unless it’s for purposes of sexual gratification. So… the recent World Naked Bike Ride? Not illegal (much to the prudes’ discomfiture). The serial public masturbator they just caught? Facing jail time.
    http://www.oregonlive.com/multimedia/index.ssf/2015/06/photos_from_the_2015_world_nak.html

    http://www.oregonlive.com/portland/index.ssf/2012/05/alleged_serial_masturbater_arr.html

    Are there going to be close cases? Yeah. But most of them won’t be. Because the prosecutor actually has to prove intent, with evidence, they probably aren’t bringing the case where evidence is lacking. A properly functioning jury should reject charges when evidence is insufficient.

    No, that doesn’t mean it doesn’t, won’t, or can’t happen…I also believe that existing statutes are written too broadly and catch behavior that should not be illegal. If we hold off on doing anything until we can do it perfectly, we’ll be a long time waiting.

    .

  79. Donna June 29, 2015 at 6:31 pm #

    “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.

  80. James Pollock June 29, 2015 at 6:39 pm #

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

    I assume you messaged her privately to suggest that she also “leave the legal analysis to the lawyers”, seeing as how this is an article critical of the legal reasoning of the ALI?

    ” If I wanted to read law school exam answers, I would teach law school.”
    Um, that’s what TA’s are for.

    Anyways, now I know you’re the type of person who doesn’t actually read things before forming an opinion of them, and I can weight your opinions properly. Thank you for your honesty.

  81. Music for Airports June 29, 2015 at 6:43 pm #

    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!)

  82. Anna June 29, 2015 at 7:13 pm #

    So, back to the topic, leaving the pseudo-lawyer-ese out of it:

    I’ve read that there is a principle in rabbinic thought that “fences in” the Torah by making stricter rules than the actual Law, to protect it from infringement. This may be all very well as part of a personal spiritual discipline, but I think it makes for very bad civil law.

    Lately I’ve read a number of otherwise generally intelligent people advocating for ever-stricter explicit consent laws for sexual activity and even flirtation, to guard against rape, and I think it’s very important to resist this. When we use positive law to outlaw intrinsically innocent human activities in order to try to “fence” against the possibility of some people committing unjust actions, in the process we will lose good and innocent things that are an important part of being human.

    Much as, when we outlaw challenging climbing structures and swings and other normal childhood activities because they could potentially lead to injury, we lose good and innocent things that are an important part of childhood. . .

    P.S. By the way, I’m sorry, Donna – I should have realized he wasn’t a real lawyer. An inability to be dispassionate about the law may perhaps be an occupational hazard of the law, but most lawyers I’ve known are quite a bit more lucid thinkers.

  83. anonymous mom June 29, 2015 at 7:56 pm #

    “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.

  84. James Pollock June 29, 2015 at 8:03 pm #

    “Lately I’ve read a number of otherwise generally intelligent people advocating for ever-stricter explicit consent laws for sexual activity and even flirtation, to guard against rape, and I think it’s very important to resist this. ”

    When you have explicit laws, people know exactly what they can do, and what they can’t do. When you have laws that are more vague, you have some people to push the envelope (perhaps too closely, accidently overstepping) and you have some people, unwilling to push the envelope, who “play it safe” and thus don’t do things they would have been allowed to do (this is known as “the chilling effect” and usually comes up in first amendment cases in the U.S., where “chilling” is bad.)

    “Affirmative consent” is intended specifically for the chilling effect. It says “don’t touch people unless you know they want to be touched.” Some people touch freely, others more reserved. The present regiment says that people who don’t want to be touched, can be touched until they say to stop; the proposed change says that people who do want to be touched have to say so (though not necessarily in words.)

    Speaking as a representative of only myself, I don’t want to be grabbing anyone in a way that they do not want. This doesn’t mean that I don’t want to be touched myself, just that I want to respect the wishes of others, whichever way they happen to be. I think this is “right” and “proper”; I don’t know if it should be “legally required” but I can understand how people who do, got there.

  85. olympia June 29, 2015 at 8:04 pm #

    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?

  86. Anna June 29, 2015 at 8:15 pm #

    “When you have explicit laws, people know exactly what they can do, and what they can’t do. ”

    Perhaps, but you’re also making crimes out of things that are not in themselves wrong. I happen to think this is a bad thing to do. I can think of some instances where it might be justified, but I think we should be very, very hesitant to do it. In my opinion, restricting important human freedoms to avoid ambiguity is not benign and harmless, as you seem to hold.

  87. James Pollock June 29, 2015 at 8:25 pm #

    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.

  88. James Pollock June 29, 2015 at 8:43 pm #

    “‘“When you have explicit laws, people know exactly what they can do, and what they can’t do. ‘
    “Perhaps, but you’re also making crimes out of things that are not in themselves wrong. I happen to think this is a bad thing to do.”

    Huh? The laws against murder are very explicit. How does this make crimes out of things that are not in themselves wrong? (I picked murder because it does not have “consent” as a defense, not because I think it’s a comparable crime.)

    If the law is explicit, and says “this and this and this are legal, that and that and that are not”, you take out the wiggle room… if you did this, no crime, if you did that, hire a lawyer.”

    The problem (well, a problem) now is that “you can do this, if some condition beyond your control is true” is written into some laws. What if I’m mistaken, in good faith, that the condition is true? I haven’t MEANT to break the law, but…

    If you want to be safe from prosecution for rape, you make sure the person actually wants to have sexual contact with you. It’s true, this may lead to a slightly lower rate of obtaining sex… until the other person catches on that they need to be saying “yes!”.

    I am not at all against people who want to have sex with each other having sex with each other. I’m also not at all against people who want to be touched up, but not have intercourse, should be able to negotiate that. But the people who don’t want it (or just don’t want it from the people who are currently requesting it) shouldn’t. In short, I’m n favor of everybody getting what they want. I’m not sure why this is controversial.

    I think the problem is double-standard. A guy who wants sex is a guy. A girl who wants sex is a slut. So, girls have a reason to pretend that they don’t want sex when they do, and a guy has to sort out who is pretending to not want sex when they do from the ones who are saying they don’t want sex because they don’t, or because they want someone else. That sorting process is a skill that must be learned and developed.

  89. Anna June 29, 2015 at 8:45 pm #

    “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.

  90. Anna June 29, 2015 at 8:48 pm #

    Nope, I don’t have a problem with laws against murder;in fact, I happen to think murder is intrinsically wrong. The problem is creating laws about things that aren’t intrinsically wrong, purely to avoid ambiguity about things that are – like outlawing overtures such as hand-holding or attempting a kiss without getting a signed affidavit first, in the name of preventing rape.

  91. anonymous mom June 29, 2015 at 8:59 pm #

    @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.

  92. Donna June 29, 2015 at 9:11 pm #

    “I assume you messaged her privately to suggest that she also “leave the legal analysis to the lawyers”, seeing as how this is an article critical of the legal reasoning of the ALI?”

    Legal analysis and discussing the real world implications of the law are two totally different things. Lenore does the later and not the former. The former is best left to lawyers; the later is something we should all do. But, yes, Lenore and I have had several discussions concerning legal reasoning. Not on this particular topic, but on many others.

    “Anyways, now I know you’re the type of person who doesn’t actually read things before forming an opinion of them, and I can weight your opinions properly.”

    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.

  93. Donald June 29, 2015 at 9:20 pm #

    @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.

  94. James Pollock June 29, 2015 at 9:23 pm #

    “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.”

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

    By the time you’re close enough to someone for either love OR friendship to apply, you really should know if it’s OK to touch them or not. I don’t think it’s unreasonable to demand that people actually indicate they want to have sex with someone before they actually have sex.

    The minister says when it’s OK to kiss the bride, if the groom is too shy to ask her himself before you get to that point..

    “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.”
    You have two negatives, and a “reasonable belief” standard in your rule. This makes it more than a little bit hard to follow.

    If I grasp your objection correctly, it’s that you don’t want to criminalize touching that is not now criminal, which you characterize as “intrinsically wrong”. I’m not as convinced that touching people without their permission isn’t intrinsically wrong, much less the proposed standard, which is somewhat looser.
    I would expect the difference to be mostly trivial, with a return to a polite, “May I?” before taking someone’s hand, with a formulaic “of course!” response. No, I don’t expect that would have much of an effect on rape. Nor would I expect much effect at all.

    As I said, things get better when people communicate what they want better. Forcing a legal change before two 7th-graders can hold hands doesn’t change that, but the sooner you learn to ask for what you really want, the greater the likelihood that what you want is what you get.

  95. James Pollock June 29, 2015 at 9:25 pm #

    “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.

  96. Donna June 29, 2015 at 9:34 pm #

    “P.S. By the way, I’m sorry, Donna – I should have realized he wasn’t a real lawyer.”

    If he has, in fact, passed a bar, he is a real lawyer. Just one with absolutely no real world legal experience whatsoever.

    “An inability to be dispassionate about the law may perhaps be an occupational hazard of the law, but most lawyers I’ve known are quite a bit more lucid thinkers.”

    Oh he just still has a law student mentality. They all sound like him. Sadly, I’m sure I did too back in the day. Once you’ve been practicing for a few years, you stop trying to impress everyone with how much legal knowledge you have … or you lose all your friends, even your lawyer ones.

  97. Anna June 29, 2015 at 9:48 pm #

    “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?

  98. James Pollock June 29, 2015 at 9:53 pm #

    “‘P.S. By the way, I’m sorry, Donna – I should have realized he wasn’t a real lawyer.’
    If he has, in fact, passed a bar, he is a real lawyer. Just one with absolutely no real world legal experience whatsoever. ”
    Lawyers have licenses to practice law and are admitted to the bar for this purpose. I do not have (and have never had) a law license, and I have never been admitted to the bar.

    I agree with you that lawyers who are newly-admitted are nearly useless until taught the business of law.

    “Once you’ve been practicing for a few years, you stop trying to impress everyone with how much legal knowledge you have”
    Because law is a field where knowing things isn’t valued, knowing how to find out is valued.

    Anyway, I’m just a person who is lucky that whatever I read, I retain. This means I can do high-level analysis in a number of fields, and get complaints of being a “know it all” in all of them… Not a new phenomenon.

    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 right, when I wasn’t?
    “No, and don’t think that helps.”

    For the record, I’m not always right. It’s just that I have so little experience with being wrong, I don’t recognize it when it happens.

  99. Anna June 29, 2015 at 9:58 pm #

    “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.

  100. olympia June 29, 2015 at 10:02 pm #

    anonymous mom- 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.

  101. jill June 29, 2015 at 10:04 pm #

    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.

  102. James Pollock June 29, 2015 at 10:04 pm #

    “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?”

    Again, if you’re close enough to be married, you and your husband should know how to read each other well enough to say “you wanna?” and “yeah” pretty transparently. And “no, but I will if you really wanna” is close enough. I’m going to go ahead and assume that a court expected to settle a question of marital rape would find that touching is presumptively allowed by a marriage contract, if the statute didn’t specify it.

    You’ve confused having to get permission before touching, with having to get separate permission before every touch. I’ve suggested on, and not the other..

    “It would be – at best – embarrassing and unromantic.”
    Yes, being raped is absolutely embarrassing and unromantic.

    “Are you married?”
    Once. Scarred for life.

    “Do you disagree?”
    I think you’re talking about something different than I am.

  103. James Pollock June 29, 2015 at 10:08 pm #

    ” 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.)

  104. Anna June 29, 2015 at 10:10 pm #

    “Again, if you’re close enough to be married, you and your husband should know how to read each other well enough to say “you wanna?” and “yeah” pretty transparently. And “no, but I will if you really wanna” is close enough.” Yes, I would say common-sense says so. But the kind of legislation we’re discussing here says otherwise, doesn’t it?

  105. James Pollock June 29, 2015 at 10:14 pm #

    “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.

  106. Yocheved June 29, 2015 at 10:16 pm #

    What jumped out at me, is how do you prove or disprove that “sexual gratification” was in mind? Does the court employ mind readers now?

    I can’t wait to get out of this stupid country. I can’t even… I give up. Good for you Lenore for sticking with it, you have a a lot more faith in the system than I do. I wish I were as strong as you are, but this rat is abandoning a fast sinking ship.

  107. James Pollock June 29, 2015 at 10:23 pm #

    “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.

  108. James Pollock June 29, 2015 at 10:28 pm #

    “What jumped out at me, is how do you prove or disprove that “sexual gratification” was in mind? Does the court employ mind readers now?”

    That’s not a new feature of the law; this part is already in there. The prosecution has to prove it, using evidence admissible at trial.

    See, for example, this definition which is in Oregon law:
    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.
    ORS 163.305(6)

    It doesn’t even have to be for “gratification”… arousal is enough. But the prosecutor does have to PROVE it.

  109. Warren June 29, 2015 at 10:33 pm #

    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.

  110. Warren June 29, 2015 at 10:37 pm #

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

    Useless words from someone that has not prosecuted a case, and has never defended a case.

    Listen Little Man, when we need help restoring our hard drive, we will call you and the Geek Squad.

  111. James Pollock June 29, 2015 at 10:49 pm #

    “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.

  112. James Pollock June 29, 2015 at 10:55 pm #

    “Useless words from someone that has not prosecuted a case, and has never defended a case.”

    Gee, Warren, how many have you prosecuted? Were you defending at the same time? Or just sitting at the defense table?

    “Listen Little Man, when we need help restoring our hard drive, we will call you and the Geek Squad.”
    You should probably go with Geek Squad. They won’t laugh in your face when you start talking about “tuning up” the loudmouths, or how you’re going to “use some old school ways of keeping rookies in line, that are not up to date with labour codes”. They’ll even pretend to care what you think.

  113. Warren June 29, 2015 at 11:19 pm #

    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.

  114. James Pollock June 29, 2015 at 11:21 pm #

    ““in our line of work, loudmouths and smart asses usually get dealt with within the ranks.”
    But apparently, this causes lasting brain damage that surfaces later in life.

  115. James Pollock June 29, 2015 at 11:29 pm #

    “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?

  116. Emily June 29, 2015 at 11:56 pm #

    >>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.

  117. Warren June 30, 2015 at 12:10 am #

    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.

  118. The other Mandy June 30, 2015 at 12:12 am #

    If my husband, on our first date, had asked for my “enthusiastic consent” before that first kiss, it never would have happened. And 10 years and 2kids later, there’s definitely not a lot of enthusiasm before “activities”, more just “hey, it’s been awhile” followed by “we should do this more often”. That said, he’s been given a blanket green light to try and convince me.

    If these types of laws pass, I imagine I will never get any grandchildren except by artificial insemination (grown in a jar?). But that’s ok; children are not ours anyway, but rather belong to the State, right?

  119. tz June 30, 2015 at 12:43 am #

    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.

  120. James Pollock June 30, 2015 at 12:47 am #

    Because the prostitute ALWAYS gets paid in advance. ALWAYS.

    So, if you run out on her without paying, there’s no crime.

  121. James Pollock June 30, 2015 at 1:01 am #

    “>>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.

  122. Tom June 30, 2015 at 1:29 am #

    @anonymousmom
    Thanks a lot for that”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.”
    Brilliant. I have thinking along these lines but could never verbalise it. You did. Thanks. I believe you are absolutely right. Furthermore I believe unless we do something about the pornogaphisation of everyday life and the comodification of sex it will just get worse and worse and worse.

  123. sexhysteria June 30, 2015 at 2:00 am #

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

  124. En Passant June 30, 2015 at 2:16 am #

    California has enacted an affirmative consent standard for all post secondary schools, public or private that receive state funds, including state funds for student assistance (ie: state student scholarship funds). It was signed into law last year.

    Full text is here:

    https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967

    Affirmative consent is defined in Section 1(a)(1). I have made some text bold for emphasis:

    (1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

    The burden of proof against the accused is preponderance of evidence.

    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.

  125. James Pollock June 30, 2015 at 2:50 am #

    “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.

  126. Dave B June 30, 2015 at 4:06 am #

    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.

    If this is going the way it seems to go, ex-post facto recantation is possible at every time.
    “Yeah i married my husband in front of a justice of the peace and we kissed, but 50 years later at a chance encounter with a lawyer i realised i felt subconciously pressured by cultural norms my love for him and didn’t even feel like it anyway, so yeah, i recant and he should be sent to mens prison on the moon”

  127. James Pollock June 30, 2015 at 4:32 am #

    “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.

  128. BL June 30, 2015 at 5:08 am #

    “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.”

    This goes far beyond sexual matters. I find myself in everyday life assuming all legal accusations to be false, unless I have personal knowledge of the circumstances. False accusations are too easy to get away with.

  129. Diana Green June 30, 2015 at 5:21 am #

    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?

  130. Jens W. June 30, 2015 at 6:19 am #

    “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?

    Would you be ok with a law that says that anyone accused of rape must automatically be guilty? After all, falsely accusing people of rape is illegal…

  131. MattB June 30, 2015 at 10:04 am #

    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.

  132. Diana Green June 30, 2015 at 10:36 am #

    FRK is about teaching our children moral courage. A young person needs lessons from parents and their communities as they grow and develop age-appropriate responses, behaviors and skills. Children with a strong sense of personal integrity, authenticity, and courage will be equipped to say yes when they mean yes, and no when they mean no–and all the shades of gray in between. In times of crisis, or even with simple decision making, kids with inner strength will be more inclined to trust their “guts”. They will know where to go for advice and for help. To develop kids like that is the purpose of good parenting. Independence. Cut the apron strings. But not too soon. Teach discernment, judgement. Talk to them about the issues raised by FRK. Have the schools and faith communities set up discussion groups to debate Judith Shulevitz’ excellent article, and the issues raised by the Zach Anderson case. Might keep them out of jail!

  133. James Pollock June 30, 2015 at 12:39 pm #

    “‘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.”

  134. James Pollock June 30, 2015 at 12:48 pm #

    “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?

  135. Andre L. June 30, 2015 at 1:08 pm #

    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

  136. Warren June 30, 2015 at 1:41 pm #

    Really when it comes down to it, unwanted hand holding is already covered under the law as battery. Why does the US love to create more and more laws? I can see it now, how men will be charged and prosecuted under the sex crime, only to be forced to take a plea for battery.

    The US Government will not be satisfied until every citizen has a criminal record and is on one or more registries.

    We as a society has become far too civilized. Civilized to the point that we are regulating and making illegal our instincts. It is funny how humans want to fight nature at every turn. What is going to happen is fairly easy to predict. Instincts and natures can only be suppressed for so long, until their is a violent release. Wonder how long before that happens.

  137. James Pollock June 30, 2015 at 1:54 pm #

    “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.)

  138. Donna June 30, 2015 at 2:19 pm #

    “‘Once you’ve been practicing for a few years, you stop trying to impress everyone with how much legal knowledge you have’
    Because law is a field where knowing things isn’t valued, knowing how to find out is valued.”

    No, it is because you quickly realize what an insufferable bore you have become and that nobody outside of law school even remotely cares to listen to you regurgitate everything you know about the law at every given chance.

  139. Warren June 30, 2015 at 2:43 pm #

    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.

  140. James Pollock June 30, 2015 at 2:50 pm #

    “I baited you with the battery comment”
    Now that you’ve admitted that you’re a troll, there’s hope of progress. Not much. But some.

  141. James Pollock June 30, 2015 at 2:52 pm #

    “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.

  142. Kimberly June 30, 2015 at 4:15 pm #

    @ Powers:

    Have you sat through an HR sexual harassment seminar lately? They now recommend that if someone slips or trips in front of you, to NOT reach out and grab them to stop them from falling. Why? Because someone, somewhere, might construe that as sexually harassing. I’d like to challenge you to explain to me how, in ANY context, someone might view such an action in a sexual context.

    This shit’s gotten ridiculous. Harassment is defined as: “the act or an instance of harassing, or disturbing, pestering, or troubling repeatedly; persecution”.

    The important word here is REPEATEDLY. As in: constantly, time and time again, over and over, nonstop, regularly, again and again, frequently…

    A one-time instance, no matter how repulsive the instance, is not harassment — sexual or otherwise. But now, you don’t even need to have the balls to stick up for yourself anymore. You can just go up your chain of command and complain — effectively putting the other person’s job at risk.

    So to think that a simple attempted hand-holding could now be legally considered a sexual assault is not far fetched.

    Our society has become a society of wimps, sissy’s, and pushovers. We used to be expected to stand up for ourselves. But now we can just go and complain to someone and have them take care of us. The idea of being responsible for our own actions??? Don’t make me laugh.

  143. Andre L. June 30, 2015 at 5:35 pm #

    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.

  144. James Pollock June 30, 2015 at 6:23 pm #

    “Our society has become a society of wimps, sissy’s, and pushovers. We used to be expected to stand up for ourselves. But now we can just go and complain to someone and have them take care of us. The idea of being responsible for our own actions??? Don’t make me laugh.”

    On the other hand, if someone touches you, for purposes of their own sexual gratification, and you do not want to be so touched… what are your options to stand up for yourself?

    I mean, if they do it, and you say no, don’t do that… it’s already done. In some cases, you can avoid that person… word that it’s a bad idea to be in the elevator alone with Fred will spread quickly amongst the ladyfolk. but sometimes it’s not possible, and it seems unfair to put the burden on all potential victims rather than on the one with international qualities (Roman hands and Russian fingers).

    In the nudie bar, part of the bouncer’s job is to keep the riffraff from handling the merchandise. In office America, HR takes on that role.

    This complaint “you should take care of this yourself”, which is what “stand up for yourself” boils down to, has wide application. Don’t make public employees come to your house just because it’s currently on fire

  145. Warren June 30, 2015 at 10:54 pm #

    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.

  146. James Pollock June 30, 2015 at 11:03 pm #

    “Ask the guy that grabbed my 15 yr old daughters butt in the hallway at school”
    You’re on the Internet, bragging that a guy grabbed your daughter’s butt in school? Father of the Year material.

    The point is, how do you improve the chances that such butt-grabbing doesn’t happen? 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.

  147. Warren June 30, 2015 at 11:34 pm #

    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.

  148. James Pollock June 30, 2015 at 11:59 pm #

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

    I can only assume it involves making bland, empty insults.

    “Now answer honestly, do you really have a job?”
    Yep. Don’t you remember when you decided I’m a lawyer?. No, wait. I work for Best Buy. No, I don’t. Sorry.
    What is the answer you want to hear? Because I’m fairly sure you’ll just substitute that for whatever I say.

    “Because checking the timelines you are on here constantly.”
    Yeah. About a dozen other sites, too.

    “Maybe you should spend more time with you kids”
    We’re between the part with the kids at home, and when they bring the grandkids. Which’ll probably be a while, since my daughter’s studying to be a doctor..

    “and less time being the moron on the site.”
    You can keep THAT job. You’re so much better at it.

    Bland insult count:
    deviant: 1
    moron: 1

  149. James Pollock July 1, 2015 at 12:26 am #

    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.

  150. Jens W. July 1, 2015 at 1:55 am #

    “Where did I imply that? I STATED that such a law (TItle IX) had been passed. Rather quite a long time ago.”

    And you seemed to imply that you don’t really care whether that law is easy to abuse or not on the grounds that abusing it would be illegal. Did you intend to imply that, or did i misunderstand 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.””

    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.

  151. Jens W. July 1, 2015 at 2:04 am #

    ““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?

  152. Dave B July 1, 2015 at 3:48 am #

    If more and more contact can be judged as unwanted, has this already touched CPR?
    Suing for cracked ribs from chest compressions is somewhat covered by good samaritan laws.

    Years ago we were taught mouth-to-mouth which was later changed to mouth-to-nose perhaps to eliminate unwanted implications of a kiss (and easier access to the airways without a tongue in the way).
    And iirc it was later changed to chest compressions only, as having the somewhat oxygenated blood pumping is better than oxygenation blood without moving it aroung.

    Adding to that, is that performing chest compressions brings the rescuer in close proximity to the chesticles…

    If a person is unconscious and in need of first aid, they can hardly consent to touching and perhaps they didn’t intend do be rescued.
    And the rescuer could feel gratified for being able to rescue someone.

  153. James Pollock July 1, 2015 at 4:28 am #

    “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.

  154. James Pollock July 1, 2015 at 4:34 am #

    “If more and more contact can be judged as unwanted, has this already touched CPR?”
    Good Samaritan laws apply, as you guessed, to shield people giving aid, unless they do it negligently.
    (So if you give CPR to a sleeping person, breaking their ribs in the process because, although you don’t have a current CPR certification, you’ve seen them do it on TV.

    The reason they removed mouth-to-mouth is because of fear of spreading infection, although awkwardness probably played a role. If you get people who would have done it but didn’t want to put their mouth on the person, that’s bad. There’s still oxygen in the lungs when you breathe out, and you can last for a while on the air that’s in there, but if the blood stops taking that oxygen to the brain, the brain starts dying.

  155. Jens W. July 1, 2015 at 5:20 am #

    “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?

  156. James Pollock July 1, 2015 at 6:06 am #

    “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?”

    Since Bobby doesn’t get in trouble just for touching her hand, it doesn’t matter.

    “-> That’s nothing new here.”
    That’s what I tried to tell you.

    “The question is whether it is an ok thing or not that that law is easy to abuse.”
    Neither. Or both. Depending on which individuals are involved. Sometimes it’s bad, and sometimes it isn’t. Most of the time, for most people, it isn’t a problem. Somehow every year thousands of young men go off to university, and manage not to be accused of rape, rightly or wrongly. And many more thousands of young women manage to somehow avoid accusing anyone of rape, rightly, or wrongly.

    No, I would be nice if reports of real rapes were brought forward (often they are not) and it would be nice if false reports were not. But schools have pressures on them A) to take immediate action if there is a report, and B) to discourage having rapes reported to them or to police.

    “What is your opinion – is it ok or is it a bad thing that that law is so extremely easy to abuse?”
    I think the problem is your assumption that it is “so easy to abuse”. It’s not. Women who report (or try to report) are often… not treated well, particularly if the accused is either well-known or an athlete.

  157. Puzzled July 1, 2015 at 9:28 am #

    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.

  158. International reader July 1, 2015 at 10:07 am #

    Getting there (and going to the end-logic of one of the first comments)

    1. As per other posts comments, do not help aged/young to cross the street (esp cross-gender/generations)
    2. Do not perform CPR even if you know how to (all cases)

    Of course until regulation compels you to do 1 and/or 2 in specified cases, the precise delineations of which will be decided in a court of law.

    What happened to society ?

  159. SOA July 1, 2015 at 10:22 am #

    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.

  160. Kimberly July 1, 2015 at 12:20 pm #

    @ Warren:

    “One good stiff forearm to the face, and he was off to the ER. That is standing up for yourself.”

    Exactly! That is how I’ve survived being female, in the Army, and working in bars and nightclubs. It’s what I’m teaching my own daughter.

    As for my son…He’s learning basic human respect and manners.

  161. Havva July 1, 2015 at 3:46 pm #

    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.

  162. anonymous mom July 1, 2015 at 4:02 pm #

    @Havva: Amen. Seriously. That is EXACTLY it. Please let’s not pretend that terrible damage has been done to women because some guy groped them for a minute.

    I can remember several incidents in my life–and I’m sure there’s some I’ve forgotten–where things like that have happened. I recall a time in 11th or 12th grade when a classmate grabbed by breast (on purpose) in the hallway as I was walking by. I turned around and screamed “A@@hole!” at him, and he never did it again.

    I have MANY problems with considering his actions “sexual abuse” or “sexual assault”:

    1. It demeans actual sexual assault. If “sexual assault” can mean anything from some dude copping a feel in the hallway for half a second to a person forcibly raping me, then that really dilutes what the term means. Sexual assault is serious, and so I think it should be reserved for situations that are actually serious;

    2. It makes bad behavior into criminal behavior. Did the guy deserve to be called an a##hole? For sure. Did he deserve to be charged with a sex crime? Not at all. That would be lunacy. We don’t need the police and criminal justice system intruding on every single aspect of our lives, and I’m going to assume the police have better things to do than follow up with ever dude who has grabby hands.

    3. As noted, it makes me into a victim when I was not a victim. Things happen in life. People say mean things to you. People bump into you. People grope you. People give you really nasty looks. Every single less-than-pleasant interaction you have with another person does not make you a victim, and if you go through life with that mindset, things are going to be very, very hard.

  163. anonymous mom July 1, 2015 at 4:04 pm #

    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.

  164. James Pollock July 1, 2015 at 4:39 pm #

    “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.”
    “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.”

    But, as awesome as it is when anyone can stand up to defend themselves, it’s still better if they don’t have to. Focus on that last bit “may well have finally gotten a lesson about consent through his thick skull.” If he’d had that lesson already inside his skull, the butt would be ungrabbed. I hardly think it’s controversial that # of butt grabs = 0 is better than # of butt grabs = 1.
    Taking away the provocation means that she doesn’t have that kick-ass self-esteem boost… she’ll just have to be proud of her OTHER awesome qualities, whatever they might be.

  165. anonymous mom July 1, 2015 at 4:43 pm #

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

  166. James Pollock July 1, 2015 at 4:51 pm #

    “I have MANY problems with considering his actions “sexual abuse” or “sexual assault”:
    1. It demeans actual sexual assault. If “sexual assault” can mean anything from some dude copping a feel in the hallway for half a second to a person forcibly raping me, then that really dilutes what the term means. Sexual assault is serious, and so I think it should be reserved for situations that are actually serious;

    You’re joining two things together that are different. “sex abuse” is an incredibly broad net that captures a lot of things, including things that involve being and remaining fully clothed.. “Sexual assault” is much less broad. “Sex abuse”, in the broadest degree, usually isn’t even a felony.

    “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.”
    No one’s arguing that. But is there a huge difference between a guy who doesn’t bother to find out what his date wants, but just does what he wants, and a guy who doesn’t care what his date wants, and just does what he wants? It may or may not be harmful, but it’s definitely disrespectful, either way.

  167. James Pollock July 1, 2015 at 5:44 pm #

    “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..

  168. James Pollock July 1, 2015 at 5:58 pm #

    I think the problem with relying on teaching swift and terrible physical retribution for transgression (“he grabbed me, so I popped him one”) is that the lesson taught isn’t the right one.
    We’d like to think that the lesson is “don’t mess with people in a way they prefer not to be messed”, but it’s actually going to be received as “don’t mess with people who can defend themselves”…which may lead to “don’t mess with anyone”, but also might lead to “only mess with the defenseless”.

    Yes, he won’t try that with you again, which is good for you. But he might try it with somebody else… somebody who, unlike you, can’t protect themself. (No, this is not an argument “let it happen to you, to protect somebody else.” It’s “being able to defend yourlself is great, but it’s only part of the solution.” Unless you only care about yourself, in which case it’s the entire solution.)

  169. Kimberly July 1, 2015 at 7:13 pm #

    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.

  170. Donna July 1, 2015 at 10:47 pm #

    “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.”

    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).

    Prosecution has absolutely nothing to do with deterrence, nor has it ever been shown to have any large-scale deterrent effect. As you said, the vast majority of the population doesn’t commit crimes because of their internal value system, not because punishment exists. As our full prisons show, a large portion of those without an internal value system against crime actually commit crimes, and they do so repeatedly, so punishment clearly provides no deterrent to them. Punishment really only has a deterrent affect on a very small band of the population who have no internal value system, but do have high levels of self control – basically your psychopaths which is why the majority don’t kill (from another recent thread).

  171. James Pollock July 1, 2015 at 10:57 pm #

    “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.

  172. Warren July 1, 2015 at 11:08 pm #

    James,
    At her age my daughter is not out to save the world. She is only sending a message to the males in the school. Eff with me and you gonna get hurt. My girls never have and never will take crap off of anyone. You know that whole idea that putting a beating on a bully makes you just as bad as the bully? Well my girls and I do not drink that kool aid.

    Kimberly,

    One of the things my old man and uncles taught me, to stand up for people. I do not tolerate certain behaviour and will always stand against it. It has gotten me into a scrape or few, but for a good cause. Far too many men today are cowards and will not take a stand.

  173. Warren July 1, 2015 at 11:14 pm #

    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.

  174. James Pollock July 1, 2015 at 11:36 pm #

    “At her age my daughter is not out to save the world.”
    And she shouldn’t have to.

    “You know that whole idea that putting a beating on a bully makes you just as bad as the bully?”
    No, actually… I’ve never heard of that. Where did you hear it?

  175. James Pollock July 1, 2015 at 11:55 pm #

    “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.”

  176. Warren July 2, 2015 at 12:00 am #

    James,

    SHUT THE HELL UP!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

    First the comment was for Donna.

    Second all your yapping had nothing to do with my original comment to Donna.
    I don’t give a rat’s rear who wants or does not want to support the death penalty. My comment was about deterrence vs. revenge.

    I am going to have to treat you like the child you are. Do not speak unless spoken to.

  177. James Pollock July 2, 2015 at 12:32 am #

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

    I respectfully decline your invitation.

  178. Donna July 2, 2015 at 7:02 am #

    Warren, studies have shown repeatedly that the death penalty has absolutely no general deterrent factor whatsoever. It, of course, deters the actual person put to death from committing any further crimes since he no longer exists, but it has absolutely no impact on anyone else’s decision making whatsoever. People are not actually thinking “well I would commit this murder if I could be assured that I would only get life in prison, but I don’t want to be executed so no.” Murder is not higher in places where there is no death penalty. In fact, it is monumentally lower in most countries without a death penalty.

    But the same can be said for all crime. People don’t not commit crimes because they might go to prison if caught. People don’t commit crimes because they find the act itself morally reprehensible and have the self control to abstain from acting. People commit crimes because they either have no moral compass or have a moral compass but lack self-control. Likewise, 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 act impulsively and then whine at me about the consequences later. Psychopaths are the one group that often both have no moral compass and have the self-control to abstain anyway. We did not create an entire criminal justice system to stop a handful of psychopaths from committing crimes. And we don’t care the slightest about rehabilitation. The entire criminal justice system is based solely on the idea of retribution.

    The exception would be crimes that set artificial limits on people’s behavior. Contrary to James’ assertion, speeding laws do have a deterrent effect. Few have actual moral opinions concerning driving 55 or 85, however, most of us do regulate our speed based on the threat of punishment. Many do make the decision to drive somewhat over the speed limit despite the potential penalty, but that is because they make a risk-benefit analysis and decide that the risk and penalty are both very low. If the risk of being caught was high and/or the penalty was higher, far more people would drive the speed limit. In fact, we constantly see people change their speed based on these factors. People tend to slow down in known speed traps and keep their speed within a minimal fine range rather than moving into higher penalties.

    While most of us probably do tack on “and I would go to prison” in our thought processes when thinking about committing crime in the abstract, the fact is that most of us would not commit a morality-based crime even if given a get out of jail free card. Many would get in their car and drive 85, but few would really take the opportunity to kill their boss or rob a bank.

  179. Donna July 2, 2015 at 7:23 am #

    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.

  180. Jens W. July 2, 2015 at 8:32 am #

    “Since Bobby doesn’t get in trouble just for touching her hand, it doesn’t matter.”

    -> As i read it he can get in legal trouble, and i understood you to say just that previously. He touched her hand and “got wood”, as you put it. If he didn’t get her explicit consent to touch his hand before doing so he could get convicted for this.

    “Neither. Or both. Depending on which individuals are involved. Sometimes it’s bad, and sometimes it isn’t. Most of the time, for most people, it isn’t a problem. Somehow every year thousands of young men go off to university, and manage not to be accused of rape, rightly or wrongly. And many more thousands of young women manage to somehow avoid accusing anyone of rape, rightly, or wrongly.”

    -> But for those to whom it happens it is quite a big issue with ruinous consequences.

    “I think the problem is your assumption that it is “so easy to abuse”. It’s not. Women who report (or try to report) are often… not treated well, particularly if the accused is either well-known or an athlete.”

    -> Bobby Average is neither well known nor an athlete. If his disgruntled ex-girlfriend is willing to ruin his life with a false accusation, then she quite likely is willing to endure those “not so well treatments”. Bobby is in for a far harder time.

  181. brian July 2, 2015 at 9:38 am #

    This law would be good for population control….

  182. James Pollock July 2, 2015 at 10:43 am #

    “-> As i read it he can get in legal trouble, and i understood you to say just that previously. He touched her hand and “got wood”, as you put it. If he didn’t get her explicit consent to touch his hand before doing so he could get convicted for this.”

    He’s going to be awfully self-conscious about it. Pretty much the way middle-school boys are, well, now. But he hasn’t actually committed a crime, and therefore, needn’t fear getting punished for one.

    “’Neither. Or both. Depending on which individuals are involved. Sometimes it’s bad, and sometimes it isn’t. Most of the time, for most people, it isn’t a problem. Somehow every year thousands of young men go off to university, and manage not to be accused of rape, rightly or wrongly. And many more thousands of young women manage to somehow avoid accusing anyone of rape, rightly, or wrongly.’
    -> But for those to whom it happens it is quite a big issue with ruinous consequences.”
    Sure. So does a case of alcohol poisoning. or an STI, or a car accident, or any of lots of other things that happen rarely but have serious effects when they happen.

    “’I think the problem is your assumption that it is “so easy to abuse”. It’s not. Women who report (or try to report) are often… not treated well, particularly if the accused is either well-known or an athlete.’
    -> Bobby Average is neither well known nor an athlete. If his disgruntled ex-girlfriend is willing to ruin his life with a false accusation, then she quite likely is willing to endure those “not so well treatments”. Bobby is in for a far harder time.”
    Bobby should have done a better job of making sure his girlfriend wasn’t a vindictive psycho before getting involved.

  183. James Pollock July 2, 2015 at 12:37 pm #

    “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!”

  184. Jens W. July 3, 2015 at 8:30 am #

    “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.

    “Sure. So does a case of alcohol poisoning. or an STI, or a car accident, or any of lots of other things that happen rarely but have serious effects when they happen.”
    -> The problem with those things is that once they have happened, the damage is done no matter what. That’s very much different that laws, where consequences are a matter of organization and decisions. One cannot decide to not have had a car accident after the fact. But one can decide that a certain law is crap and to abolish it or not to pass it.

    “Bobby should have done a better job of making sure his girlfriend wasn’t a vindictive psycho before getting involved.”
    -> 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.

  185. James Pollock July 3, 2015 at 1:30 pm #

    ““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?