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Unwanted Touching, Indecent Exposure, and Sexual Arousal:

Why do we treat unwanted touching of some parts of the body different from unwanted touching of other parts of the body? (Obviously, I'm referring here to unwanted touching, not beating someone, holding someone down, or otherwise injuring them.) And why do we treat being nude or having sex in front of unconsenting others as a crime?

It seems to me that the two may be related. In an earlier post, I suggested that one similarity may be that both may involve "a connection with sexual arousal — either the possibility that you might be involuntarily sexually aroused, or the likelihood that the other person is deriving some sort of sexual arousal from touching you." If someone rubs a man's penis in a public place, for instance, the man may feel involuntary sexual arousal (though even if the touching is arousing, it might be unpleasant, precisely because it's done without the man's permission). Likewise, if two people are having sex in a public place, passersby may also feel such involuntary arousal (though I stress again that the arousal may be disgusting rather than on balance pleasant, precisely because it's unexpected and unconsented to). Such messing around with others' hormonal systems, it seems to me, is troubling in a way that an unwanted pat on the back or the ounesthetic but nonsexual display of, say, an unsightly belly is not.

On reflection, though, I think I probably overstated the importance of this factor as to unwanted touching, and understated the importance of the other factor that I mentioned: "the likelihood that the other person is deriving some sort of sexual arousal from touching you." Even if you feel entirely unaroused (neither pleasantly aroused nor, more likely, unpleasantly aroused) by someone caressing your private parts in public, you may feel quite upset by the likelihood — not certainty, but likelihood — that this other person is deriving some arousal from the action, and from your involuntary involvement in the action.

That too helps explain why we treat unwanted pats on the back differently from unwanted pats on the breast or on the genitals. (To shift for a moment to a much more intrusive but necessary touching, I take it that many of us would be quite upset if we learned that our gynecologist, urologist, or proctologist, who has to touch our private parts, is actually being aroused by the touching, or, worse still, is engaging in the touching because he wants to be aroused by it. Here, we probably must acknowledge some risk of the arousal — but I suspect most of us try to put it out of our minds, and most certainly would not enjoy learning that the risk in this instance is reality.)

And it might explain why we're quite upset by at least some forms of public nudity and especially public sex. If I see someone masturbating in a public place, I'll probably assume that he's doing precisely because he gets his jollies from being seen by unexpecting passersby (maybe not passersby quite like me, but at least some kinds of passersby). Perhaps it is this sense that the person is likely to be deriving some sexual arousal from others' involvement in his act, even if the involvement is simply observing, that makes it an offense against those others.

I'm not sure how apt this explanation ultimately is for all cases of public sex or public nudity, especially ones where it doesn't seem terribly likely that the people engaged in the act really are doing it for the sake of sexual exhibitionism. But the risk that sexual exhibitionism is part of the motive, and thus that the viewers are in a sense being involuntarily used (though without physical touching) for the actor's sexual gratification, seems to be present in at least many instances of public sex and nudity, to the point that a prophylactic rule against such conduct (except when only consenting viewers are likely to be present) seems sensible.

As I said in the earlier post, I'm not positive about this, but it seems to me that there's something interesting and possibly important in play here: Some conduct that sexually arouses a person through the unwanted participation — even visual — of another may be improper, even if similar conduct in which sexual arousal is absent is generally fine.

Robert F. Patterson (mail):
The question seems so naive to me that I cannot see why it is even asked. The desire to touch someone of the opposite sex--especially men towards women-- on their erotic parts is TOTALLY different to touching them on the arm or head, for instance. It is exactly the same as the fact that the breasts or the genitals are covered, because they are "private parts" and off-limits to any unwanted intrusion.
5.7.2006 5:31pm
Gonerill (mail):
On reflection, though, I think I probably overstated the importance of this factor as to unwanted touching, and understated the importance of the other factor that I mentioned: "the likelihood that the other person is deriving some sort of sexual arousal from touching you."

Good to see it only took a few days for you to reason this one out to the right answer.
5.7.2006 6:20pm
Tom952 (mail):
Why do we treat unwanted touching of some parts of the body different from unwanted touching of other parts of the body?

Don't we treat it the same, but to different degrees?

I do not like unwanted touching. An unwanted pat on the back can be patronizing and/or demeaning. However, the way I communicate my displeasure is in proportion to the act. It would be inappropriate to react the same way to an unwanted back pat as I would to unwelcome sexual contact.

I think the law is structured in this way. If someone sued over back pats, it might be viewed as a nuisance suit and the award fairly trivial vs. a suit over unwanted sexual touching.

Similarly, it seems that one should not have to tolerate unwanted noise, particularly inside one's office or domicile, as an extension of the right not to be touched. After all, unwanted noise is the shaking of your eardrum against your will, sort of touching-by-proxy.

??
5.7.2006 7:21pm
Cynicus Prime (mail) (www):
Unwanted touching falls very narrowly under the banner of "physical harm" that most radical social libertarians (like myself) believe is the only regulatable (anti-)social behavior. Unwanted displays are an entirely different animal, and to my eyes have no valid reason to be regulated. We don't allow unwanted "speech" to be regulated, so why would unwanted visual "speech" be any more regulatable? My publicly exposed phallus (not that it often is...) may not be something you want to see, but that's your problem; avert your eyes. I don't care if it being exposed makes you uncomfortable or inadvertently aroused (the latter is much more likely *wink*), nor should the government.
5.7.2006 7:47pm
Tom Holsinger (mail):
This is a power and intimidation issue too - one used by some with the objective of driving women from the public square. It is not merely about sexual arousal.

There is an enormous difference between consensual public displays of affection, and unwanted touching of any sort. The latter is a variety of assault.
5.7.2006 9:14pm
Daniel-San (mail):
Not long ago, I came across an Illinois Appellate case. A doctor was convicted of sexual assault after a man found that the doctor was masturbating while performing a rectal exam. I believe the case contains no indication that the exam itself was any different from what the man consented (requested, in fact). The Court affirmed.
5.7.2006 9:28pm
logicnazi (mail) (www):
I still don't find this analysis very convincing. It seems to me that the difference between pats on the back and genital touching has to do with the level of invasiveness/privacy. We feel that our genitals are more private than our backs and indeed there is a certain understanding that aquantances may pat us on the back but genital touching is more invasive. Even if we are sure they don't feel any arousal.

I mean consider what happens if we learn that someone is engaging in various sorts of touching just because they like annoying people. Say some guy goes around patting people on the back just because he realizes it annoys people and he likes causing trouble. Sure we think he is an ass and probably don't want anything to do with him but we surely don't think he should be criminally prosecuted.

On the other hand if we find out someone is touching people's genitals to be annoying and then he touches your genitals you are still going to be outraged. Indeed you will still think this guy needs to punished and possibly jailed even if you knew he had been castrated and thus very unlikely to derive sexual pleasure from it.

Sure we find it sorta 'icky' to think we are the subject of other people's sexual jolies. Ironically despite all the time we spend dressing up to look hot and sexy many people find it really grosss to find out they are the subject of other people's sexual fantasies. Yet this explanation simply won't work for why we find genital touching bad because we find it bad even when we are damn sure it isn't motivated by sexual jolies.

Moreover, if true this would argue strongly for the legalization of public nudity. If people strongly dislike a kind of touching for any reasons it is reasonable to ban it and people shouldn't be allowed to physically violate another person (without consent) to get their jollies. However, uncomfortable as it may be, the mere fact that someone is getting sexual arousal remotely is no grounds for making something illegal.

I mean merely telling a woman that she is really hot, especially if you do it in the right way, is going to clearly indicate that you are getting sexual jollies from looking at her but yet is going to be perfectly constitutionally protected despite its rudeness (assuming it isn't in the workplace). Also by your account merely telling someone you are going to go home and masturbate about them should be illegal despite the fact that it is an expressive act informing them that you are going to engage in an entierly legal activity.

Furthermore the unwanted sexual jollies argument only applies toward flashers and similar types which could easily be banned without banning nudity in general. Actual nudists just go about their buisness and clearly aren't getting sexual jollies from the buisness. It is only people who streak or quickly expose themselves that fall into your category so we merely need a law that forbids the directed exposure of genitals or brief public exposure of one's body for lascivious purposes. It gives no reason to bad actual honest to goodness nudists.

As for the doctor's examples I'm not sure if I agree with the deciscions but there is a very strong sense in which the doctor did not do what the man consented to. I think there is an implicit clause in one's consent to these sort of procedures that the doctor is going to act professionally and in particular not masturabate or otherwise unprofessionally indulge his sexual desires. I think if the doctor had restrained himself and acted professionally but later the patient had found out through other means that the doctor had gone home and masturbated or told his wife about how hot it was he wouldn't have any case despite the fact that the doctor would have been equally much getting off on the patient.
5.7.2006 10:21pm
logicnazi (mail) (www):
Besides on a greater point I just don't see how this isn't just a very complicated and round about way of saying people don't like public nudity and find it 'icky'. Why should any desire not to be part of another person's sexual fantasy be given any more weight than a desire not to see the flag burned or not to be exposed to racist rhetoric.

This whole line of reasoning just smells very fishy to me. It seems like a justification we would only come up with if we had already decided on the outcome we want and were looking hard for a theory which would get us there. However, I am impressed with the valiant effort to distingush public nudity from other types of messages.
5.7.2006 10:25pm
Fub:
logicnazi wrote:
I still don't find this analysis very convincing. It seems to me that the difference between pats on the back and genital touching has to do with the level of invasiveness/privacy. We feel that our genitals are more private than our backs and indeed there is a certain understanding that aquantances may pat us on the back but genital touching is more invasive. Even if we are sure they don't feel any arousal.


I'm inlined to agree that there is something other than sexual interest, revulsion or arousal at work in most any person's objection to being touched in some ways, exclusive of injury or pain of course.

For example, there is nothing sexually interesting about picking one's nose. However, I'm fairly certain that even someone who would pick his own nose in public would object to someone else picking his nose, even in private.
5.8.2006 12:13am
David Chesler (mail) (www):
The analysis regarding "the likelihood that the other person is deriving some sort of sexual arousal from touching you" also explains why the existence of pornographic pictures of a person from the past that are still being used for their prurience is called by some a continued victimization.

I'm not sure it is (yes, of course what happened to little Masha was wrong, but I'm not sure how the pictures continue to harm her) but I still haven't figured out why it's wrong to come up to the hermit while he is sleeping and painlessly kill him.
5.8.2006 12:42am
honeybadger (mail):
Here's a quote from Ayn Rand you might find relevant to the discussion:

"Civilization is the progress toward a society of privacy. The savage's whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men."

And re. the following:

"For example, there is nothing sexually interesting about picking one's nose. However, I'm fairly certain that even someone who would pick his own nose in public would object to someone else picking his nose, even in private."

I feel compelled to point out De Sade would disagree. Not for the faint of heart: google "120 Days of Sodom" + "pretty little snotface". Sorry to do that to you, I really am...LOL!

In other words, perverts can eroticize absolutely anything.
5.8.2006 1:25am
Juan Notwithstanding the Volokh:

If I see someone masturbating in a public place, I'll probably assume that he's doing precisely because he gets his jollies from being seen by unexpecting passersby


And if I see a certain professor intellecually masturbating by obsessing over the minutiae of ingrained and obvious social norms, I'll assume he gets his jollies from injecting the thought of unwelcome sexual touching into random internet passers-by.
5.8.2006 10:05am
Erik Voeten (mail):
You really need to read Belle Waring at Crooked Timber, she is right on target:
5.8.2006 10:51am
James Lindgren (mail):
Erik:

I'm surprised to see you endorsing Belle Waring's commentary at Crooked Timber, which I thought included some sound criticisms, but eventually went well over the top. IMO passages such as this seem unfair:

Ironically for a series of posts concerned with the boundaries of public displays of private sexual behavior, the disturbing thing about EV's post was that I felt I was getting a window into his mind that I really, really didn't want to look into. Somebody close the drapes up in here! The possibility that a victim—of anything from groping to outright rape—secretly wants it or secretly enjoys it, even if she can't admit it to herself, is a staple of violent fantasies about rape and sexual domination.

Because Eugene did not say "that a victim—of anything from groping to outright rape—secretly wants it or secretly enjoys it, even if she can't admit it to herself," juxtaposing it with Eugene's arguments is misleading.

When I read Eugene's original post, I definitely thought that he did not have the balance at all right. It is highly unlikely that, while enacting assault statutes, unwanted sexual arousal in the victim is more than a trivial concern of legislators if it is a concern at all, though it may be a nontrivial concern in enacting public nudity or obscenity statutes. To that extent, Eugene's critics are absolutely right. And I recognize that Eugene's greatest intellectual strength (besides his brilliance) can occasionally be a weakness: his dispassionate, hyperanalytical approach to the world. So Eugene was certainly open to some criticism, but some of the twisting of what Eugene said, particularly on sites other than Crooked Timber, is ridiculous.

Eugene never said that a woman victim "secretly wants it or secretly enjoys it," or anything of the kind.

Eugene was referring to involuntary, unwanted, unconsented physical signs of sexual arousal.

Erik, are you debating whether that sometimes occurs?

Certainly, Catharine MacKinnon thinks it does.

Can't people watching an R-rated movie in a theater become physically sexually aroused when they would rather not be? Are they lying about not wanting to be physically aroused? Do they "secretly want it"?

Aren't there many people who would attend an R-Rated film but not a more sexually explicit one, staying away precisely because they do not want to be phyically aroused in the theater, which (if they attended) they might not be able to suppress just through an act of will (for reasons that MacKinnon details at length in her work).

Why can Catharine MacKinnon discuss the problem of unwanted apparent physical sexual arousal while Eugene can't? (OK, OK, I know the answer to that one, but they both should be able to discuss it.)

(DISCLOSURE: I have written (once) on pornography--Defining Pornography (U.Pa.L.Rev. 1993)--and MacKinnon once proposed to me that we write something together in response to a joint critic of ours, a critic who inaccurately called me in draft a "radical feminist fellow traveler.")

I don't have the relevant MacKinnon essay in front of me, but I remember her discussing the problem of unwanted physical sexual arousal in women. (I don't remember whether she was referring to the studies that compared women's physical vaginal arousal while watching explicit films to their reported arousal, but I think that descriptions of physical arousal studies of both men and women can be found here: FRANKLIN M. OSANKA &SARA LEE JOHANN, SOURCEBOOK ON PORNOGRAPHY 141-42 (1989).) I apologize for my imperfect memory because it's been 14 years since I read that literature.

Without the Mackinnon source at hand, I have only my footnote text, which reads (141 U. Pa. L. Rev. 1153, n.154):


See Catharine A. MacKinnon, Sexuality, Pornography, and Method: "Pleasure under Patriarchy," in FEMINISM &POLITICAL THEORY 207, 232 (Cass R. Sunstein ed., 1990) (stating that women's physical responses are socially conditioned and that verbal responses saying that they are not aroused may be more accurate).

So, by discussing unwanted physical responses consistent with sexual arousal was MacKinnon saying that a woman victim "secretly wants it or secretly enjoys it"? I don't think so.

Neither was Eugene.
5.8.2006 4:33pm
dweeb:
Using Catherine MacKinnon as anything other than an example of the complete absence of reason seems a stretch.

Some of this thread also goes to the subject of privacy, as in restrooms, etc. - which seems to be the right not to be the object of someone else's voyeuristic arousal. There's the issue of seeing someone else naked, and that of being seen naked without your consent. These things all raise interesting questions regarding the admission to locker rooms, restrooms, etc., of those whose patterns of arousal don't readily accomodate simple gender segregation as a means to assure privacy rights and the right not to become an unwitting part of someone's exhibitionist arousal.
5.8.2006 7:06pm
CrazyTrain (mail):
Coming from a guy who regularly reads and praises PowerLine, I find Jim Lindgren criticizing the CT post as going a little too far to be laughable. Lindgren proves himself again-and-again to be a right wing hack. Whether he once was something else I do not know, but he apparently fell in love with Bush at some point in the last five years, a la Lilleks, Roger Simon, etc.
5.8.2006 11:00pm