We've Come So Far -- To The Point Where Holding Somebody's Hand Can Be A Sex Crime
Government is so often in the business of unintended consequences -- or, perhaps these consequences were somebody's dream all along. This is a model law that Judith Shulevitz is writing about in The New York Times -- but one that really follows along the lines of many universities' standards under Title IX for "affirmative consent":
Deliberations about affirmative consent are going on right now at the American Law Institute. The more than 4,000 law professors, judges and lawyers who belong to this prestigious legal association -- membership is by invitation only -- try to untangle the legal knots of our time. They do this in part by drafting and discussing model statutes. Once the group approves these exercises, they hold so much sway that Congress and states sometimes vote them into law, in whole or in part. For the past three years, the law institute has been thinking about how to update the penal code for sexual assault, which was last revised in 1962. When its suggestions circulated in the weeks before the institute's annual meeting in May, some highly instructive hell broke loose.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.
I loved this comment by Query in The New York Times:
This is a power play by people who know nothing about power other than their desire to have the power to force their vision of sexual exchanges on others through totalitarian state power, totalitarian because it superciliously uses the state to inject into ALL the most intimate adult relationships their own weird ideology, completely unrooted in biology, psychology, or sanity. The heart has its reasons reason does not know so.Mind your own damn business. Take responsibility.
It is pathetic that this perverted nonsense is taken seriously in the name of rape. It is a perfect storm example of why american contempt for the academic and the intellectual and the professor is justified and the Emperor's New Clothes remains relevant. The ALI isn't what it was. It is like the founder's grandson running the business into the ground.








"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)."
Not rape (yet) but is a serious "hate" crime coupled with the implied threat of "extortion" and "kidnapping".
Bob in Texas at June 28, 2015 5:55 AM
"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."
This is so true - I served on a grand jury once and was shocked at some of the charges for which there simply wasn't enough evidence. But, the prosecutor and the cops used those extra charges to push the defendant into a plea bargain.
Or, in the cases conducted by the sex crimes prosecutor, she was clearly a man-hater who, despite our cries that she was putting a guy through hell on the lies of some woman, said that every claim by every woman must be dealt with as if it were true.
And there are those out there who once they learn what the law is will use it to "get back" at any guy they don't like.
charles at June 28, 2015 5:55 AM
I think we've seen all this before. They used to call it Puritanism.
Thou shalt not speak with a suggestive tongue.
Thou shalt not hold hands without formal, binding consent.
If the woman is shamed thou shalt be brought before the tribunal.
If thou art guilty as presumed, banishment shall be thy sanction and a scarlet S.O. shall be listed by thy name.
Everything old is new again.
Canvasback at June 28, 2015 6:13 AM
Wow. The song by Hootie and the Blowfish, "Hold My Hand" is about sexual harassment now. And so is The Beetles, "I Wanna Hold Your Hand."
Patrick at June 28, 2015 8:23 AM
You didn't intend to commit sexual assault, but you are guilty, because the "victim" says you are.
You didn't intend to discriminate against blacks in renting apartments, but you don't have the correct percentage of blacks in your apartments, so you are guilty of housing discrimination.
You didn't intend to engage in money laundering, but you made two separate deposits of $7500. The feds seize your money.
Notice a trend?
Bill O Rights at June 28, 2015 8:30 AM
Oh, let's make it worse.
Person A's name is Handsome McCharming, with looks and personality to match his name. Person B likes his attention. A few months later:
But Person C's name is Homely McDull, and it's an accurate moniker. Person B doesn't like his cold, clammy hand at all.
Person A and Person C did exactly, and I mean exactly, the same thing. Is one of them a sexual criminal? How so?
Old RPM Daddy (OldRPMDaddy at GMail dot com) at June 28, 2015 8:30 AM
Person A's name is Handsome McCharming . . . But Person C's name is Homely McDull,
Great SNL sketch about sexual harrassment in the workplace (featuring Tom "Deflated Balls" Brady as Handsome McCharming.)
JD at June 28, 2015 9:27 AM
The dovetails nicely with the Supreme Court Ruling on same sex marriage.
Pretty soon, any touching at all outside of marriage can be prosecuted as criminal sexual assault, with no proof needed of actual harm.
Isab at June 28, 2015 9:37 AM
And people wonder why an increasing number of men want nothing to do with women.
TMG at June 28, 2015 12:10 PM
This is a power play by people who know nothing about power other than their desire to have the power to force their vision of sexual exchanges on others through totalitarian state power,
I'm noticed, from being on this board and other boards with libertarians, that libertarians tend to view most, or at least many, laws as being driven by the desire to have power over people. They don't seem to understand -- or perhaps believe is a better word -- that while laws do end up having power over people, that doesn't mean that having power over people is the reason behind them.
I'm not saying that couldn't ever be the reason. In fact, exercising power over people due to fear and/or prejudice sometimes is the reason behind laws (anti-miscegenation laws and laws banning same-sex marriage are two examples.)
But I don't believe that's the case most of the time.
JD at June 28, 2015 12:21 PM
@JD
No, sometimes they just think they know better how to run your life. Nancy Pelosi was given a number of clear options when she was speaker of the House - she even admitted so on occasion - between increasing federal revenues and just arbitrarily controlling people. She always picked arbitrarily controlling people.
“Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”
― C.S. Lewis
El Verde Loco at June 28, 2015 12:24 PM
She always picked arbitrarily controlling people.
Any actual examples?
Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive.
It sounds like C.S. would definitely be opposed to seat belt and helmet laws (among countless other laws.)
JD at June 28, 2015 12:54 PM
TMG: And people wonder why an increasing number of men want nothing to do with women.
This isn't because of these sex crime laws. It's because so many Americans have decided that it's OK to disobey the word of God by approving of same-sex marriage (and homosexuality itself.) If we don't change course and turn back to God, He will destroy this increasingly wicked nation.
Romans 1:27: And the men likewise gave up natural relations with women and were consumed with passion for one another, men committing shameless acts* with men and receiving in themselves the due penalty for their error.
JD at June 28, 2015 1:37 PM
"It's because so many Americans have decided that it's OK to disobey the word of God by approving of same-sex marriage (and homosexuality itself.)"
This sin is no different than any of the over one hundred sins listed in the bible and should NOT be treated differently as it has been.
We are ALL sinners past, present, and future. We are human and have free will. No brainer that we will sin.
Those that are treating this one sin as the end all are missing the point.
Unfortunately those in charge, the MSM, and a large number of adults are elevating SIN (looting, murder, robbery, abortion on demand, lying (you can keep your doctor, you have all of the pertinent emails, (not sure about WMDs in Iraq)) over good deeds (I would hope Godliness in most quarters.)
Love the sinner. Hate the sin. Applies to everyone. Most spewing hateful words are ignorant, scared, and/or sheeple.
BTW. Concealed carry laws will be found to lawful in all States under the logic applied to this ruling. Thanks SCOTUS.
http://illinoisreview.typepad.com/illinoisreview/2015/06/scotus-marriage-decision-will-change-illinois-conceal-carry-law.html
Bob in Texas at June 28, 2015 2:12 PM
April 6 Obama fundraiser in San Francisco"
"... And it's not surprising then that they get bitter, they cling to guns or religion or antipathy to people who aren't like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations," Obama said."
It will be VERY interesting to Conservatives and Independent voters if CCL is found to be in a different category of nation-wide "Right" than same-sex marriage.
I just don't think us simple folk will understand the logic.
So welcome to my world LGBTs and I am truly glad you are here so we that we can now communicate about some really awful things going on in the world.
Bob in Texas at June 28, 2015 2:31 PM
Yet this girl will never go to jail despite filming the lack of affirmative consent:
"Watch This Girl Try to Kiss Total Strangers After Asking for Directions"
http://time.com/3768550/girl-kiss-strangers-grand-central-station-farah-brook/
Snoopy at June 28, 2015 2:34 PM
I liked the video...thanks Snoopy. I'm actually not that surprised that the guys backed away. I don't think guys (most guys) have any problem with a woman coming onto them. I sure don't. It was the abruptness that was the issue here, not the woman trying to kiss them. If this setting was in a bar and she had been talking and flirting with the guys for a while and then leaned in to kiss them, I think the reactions would have, in general, been different.
JD at June 28, 2015 3:25 PM
Introductory quote for The Cowing of the Medical Profession by Dr. Richard N. Fogoros, at The Covert Rationing Blog.
Floyd Ferris, a bureaucrat in the novel Atlas Shrugged by Ayn Rand:
=== ===
Did you really think that we want those laws to be observed? We want them broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against.
The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them.
One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone?
But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted and you create a nation of law-breakers.
=== ===
Andrew_M_Garland at June 28, 2015 3:52 PM
. . . libertarians tend to view most, or at least many, laws as being driven by the desire to have power over people. . . .But I don't believe that's the case most of the time.
Ok.
Why does importing lobster in wax lined cardboard result in jail time but plastic boxes dont?
Why is it illegal for you to sell ivory that has been legally obtained?
Why is it when companies like Gibson get raided and their inventories seized for violating international law (even when they didnt) its only when the politician in power belong to the party they didnt donate money to?
Why do florists need a licence specifically for florists on top of a general business licence?
Why do those who sell coffins need to be required to purchase all the equipment needed to run a funeral home even when everyone knows they dont want to do anything other than sell 4x2x6 foot boxes?
lujlp at June 28, 2015 4:35 PM
"And people wonder why an increasing number of men want nothing to do with women.
This isn't because of these sex crime laws. It's because so many Americans have decided that it's OK to disobey the word of God by approving of same-sex marriage (and homosexuality itself.) If we don't change course and turn back to God, He will destroy this increasingly wicked nation. "
Dear Lord the delusion expressed here! No sir, men are not rejecting women and going gay because of the same sex marriage laws. Admittedly, if I could go gay, I would have by now, but that's just not an option for me. I can't choose to be gay.
Matt at June 28, 2015 5:35 PM
He was trying to be humorous Matt. And failing miserably.
Ben at June 28, 2015 6:21 PM
He was trying to be humorous Matt. And failing miserably
Well then, he should be fired from his jobs then
lujlp at June 28, 2015 7:37 PM
;->
Ben at June 29, 2015 6:33 AM
"They don't seem to understand -- or perhaps believe is a better word -- that while laws do end up having power over people, that doesn't mean that having power over people is the reason behind them. "
Er, yeah they are. For the bulk of human history, societies functioned with orders of magnitude less law than we have now. Not only do the constant stream of laws and regulations flowing out of Washington do little or nothing to improve society, but many of them demonstrably do more harm than good. (Consider the bill that created the Transportation Security Administration.)
Law is a minimum set of standards crafted to ensure a reasonable degree of social order. When a law is enacted that doesn't contribute to that goal, then the motivation was the desire was to exercise control over people and/or their expressions. Logic admits no other possibility.
Cousin Dave at June 29, 2015 11:08 AM
This is nothing new from the ALI. They are an academic bunch, and their model codes push an abstract principle beyond what any sensible regular guy would understand.
For example, I remember from law school that the Model Penal Code weighs culpability entirely in terms of mens rea (intent), so an attempt at a crime (no matter how unlikely or absurd) is punished exactly the same as a completed crime. So, if I attempt to kill you by squishing your head between my thumb and forefinger (a la Kids In the Hall), I've committed attempted murder, which gets me punished exactly the same as if I shot your head off with a gun.
Fortunately, no one listened to the ALI when they took this approach. Too bad legislators are listening to them in this silly case.
Osama bin Pimpin at June 29, 2015 1:35 PM
This is such scary nonsense. Why is passivity the new "protected" class? Years ago, if you didn't want your hand to be held, you simply pulled yours away. But under this scenario you can sit and stew for months until you go to therapy and say you never wanted your hand to be held, and so commences sex crime litigation?
What if she's too passive to refuse a goodnight kiss, a second date or more, sex, and even marriage?
Or even, what if, after surrendering the hand, there's no second date, no future with the hand-holder? After months of stewing, perhaps seeing the hand-holder out with someone else, she (and I don't think all this brouhaha is about protecting men from presumptive hand-holding women), sees red and decides to prosecute him for that brief hand contact?
I thought we were teaching women to become empowered, to find their voices, including the one which says "no". Now there's a movement afoot to have government step in as a surrogate parent, so women can be protected from making a decision, letting her choices be known? Are we in a wayback machine?
samm at June 29, 2015 5:32 PM
Law is a minimum set of standards crafted to ensure a reasonable degree of social order.
So that's it, is it Dave? That's the only reason for laws?
JD at June 29, 2015 10:18 PM
Why do florists need a licence specifically for florists on top of a general business licence?
The reason that florists need a licence specifically for florists on top of a general business licence is that when a florist is placing another florist on top of a business license, he needs to be extremely precise. If the florist doesn't place the other florist in exactly the right position on top of a business license, the florist being placed could fall onto the field of jagged glass surrounding the business license and be seriously injured.
JD at June 29, 2015 10:25 PM
Matt: Admittedly, if I could go gay, I would have by now,
Matt, Satan is extremely powerful. Our Lord and Savior was able to resist Satan's temptations but that's because he's the Son of God. You can never say that you'll always be able to say "no" to Lucifer.
Remember Oscar Wilde? When he was young, he loved the ladies (and the ladies loved him.) Nostradamus called him "the white Wilt Chamberlain." And he wrote short fiction pieces like The Hot Princess and A House of Whores. But then, after repeated temptation, he went over to the dark side. He rejected women, started flouncing around with men and wrote short fiction like The Happy Prince and A House of Pomegranates.
Or take a recent example: Bruce Jenner. Olympic gold medal winner in the decathlon. Married to a beautiful woman, Chrystie. Tempted many times by the serpent but his faith in the Lord was always unwavering. However, Satan, undeterred, reached deep into the pit of Hell and brought forth his ace closer: the Kardashians. Bruce's faith was so steadfast that he even managed to resist the lure of this pit of vipers but eventually they got to him and, next thing you know, he's flouncing about in a dress and lipstick on the cover of a decadent magazine and we're supposed to call this creature "Caitlyn." When an All-American manly man like Bruce becomes twisted like this, there is no doubt that the end-time and righteous judgment of God is drawing near.
JD at June 29, 2015 11:19 PM
"So that's it, is it Dave? That's the only reason for laws? "
Yes. Laws are not morals. Law is far too blunt an instrument to enforce morality, and every attempt to do so creates results both oppressive and perverse. The only thing law is capable of doing well is preventing social disorder. (And even that depends on how rational and skilled the lawmakers and law enforcers are.)
Cousin Dave at June 30, 2015 7:54 AM
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