THE UNWANTED TOUCH

THE UNWANTED TOUCH

THE BOY COMPLAINS ... 

"First you say you do

And then you don't

And then you say you will

And then you won't

You're undecided now

So what are you gonna do?

Now you want to play

And then it's no ...

[“Undecided,” Charlie Shavers & Sydney Robin (1938)]

THE GIRL ANSWERS: 

“You don't own me

I'm not just one of your many toys

You don't own me

Don't say I can't go with other boys

And don't tell me what to do

Don't tell me what to say

And please, when I go out with you

Don't put me on display 'cause

You don't own me

Don't try to change me in any way

You don't own me

Don't tie me down 'cause I'd never stay

[Pop song first sung in 1963 by Leslie Gore (TN: Leslie Goldstein), written by two men, John Madera and David White, has become an feminist anthem.]

AND NOW ... 

What should we make of the recent controversy about Joe Biden’s habit of touching people, particularly females, during the course of his political activities. Biden hasn’t been accused of sexual motives in these acts, although the complainants have been women. Rather, the “victims” feel they have been “violated” by his presumptuous physical familiarity: hugs, shoulder grasping, kisses on a forehead or a cheek, a nose, the back of a head.

(Apparently, Biden doesn’t do such things to men. Perhaps he accepted the traditional double standard, shaking hands with men, although he may have committed the modern “bro hug” as well. At any rate, it seems that no men have come forward to complain about misbehavior toward them.)

His defense is that he has done this for many years without complaint; he does it to show that he cares for individuals in a personal and emotional way, and that he is not a cold, unfeeling politician. Once made aware that “modern sensibilities” mean that some people — particularly women — are offended by conduct that “invades their personal space,” he promises to find some other means to communicate his concern for the lives of “his people.”  

    

In the general legal sense, any “unconsented touching of another person” is and has always been, technically, a “battery,” and may be considered a tort (that is, a civil wrong), or a crime. (An “assault” is an attempted battery.) The degree of physical force that results from the touching is what defines the conduct as either crime, tort, or not actionable, but merely an inappropriate violation of a social norm. (The intent need not be to harm; the only intent needed is the willful act of touching; i.e., not unintended or accidental.)

In traditional social situations, “incidental contact” between two persons usually occurs without legal consequence or even without objection. First, in schools and then in workplaces, boys and girls and men and women are pressed close together in any number of settings: elevators, staircases, classrooms, cars and vans, grandstands, raves, pop concerts ...

In the process of “socialization,” boys learn quite early what sort of physical contact with girls is appropriate and what is not. While pre-adolescent touching of most body parts is acceptable, boys and girls learn the greater limits once puberty rears its nervous head.

The truth is that in the past, the social field has not been level; males usually have been the aggressors, the initiators of close contact with females, whether as a sexual probe, or, as we have now realized, as a test or exercise of bullying power. The female, who was the victim of this conduct, had two choices: accept the probe, in which case she might be called a slut; or reject it, and be condemned as a prude, or worse, a tease.

(The adolescent boy was also faced with two difficult options: if he hesitated to initiate any contact with a girl, he was deemed by peers (girls as well as boys) to be less than “manly;” if he forced the contact, he might be thought of as crude, a brute, a thug.)

Pop culture has a lot to say about these interactions. Stories, jokes, songs, shows, and now social media, have made it clear — to boys, that is — that girls (i.e. many girls) prefer “bad boys,” i.e., the ones who are aggressive. (“Aggressive” in this context also implies a broad spectrum of action: it may mean attentive, vocally admiring, persistent, or clumsily “copping a feel,” rather than actually forcibly groping or sexually assaulting.)

In our culture, girls give boys differing signals: they prefer boys to be sensitive and caring, but not timid; girls want to know they are physically desirable and that the boy they desire desires them. Adolescence is a time of experimentation and risk-taking, and of fragile emotions and hormonal excitation.

Over the course of my legal career (from @1967 — now, over 50 years), I’ve seen the evolution of attitudes toward sexual touching. Beginning with the most extreme form, rape, the consistent trend has been to broaden the definition of the crime, to permit wider acceptance of the “alleged victim,” to make it easier to convict, and to increase the punishments for transgression.

(While the result has been to reduce the chance of injustice to the victim, the lessening of demand for greater proof has also resulted in many injustices. I am thinking of the numerous reversals of convictions after DNA evidence disproved the claims of women who identified the accused as their assailant.)

(There are two issues in sex cases: was the act consented to and who did it. In the ID issue case, the fact of the crime is admitted but the identity challenged; in the other kind, for instance, a “date rape case” in which the parties are acquainted, consent is the contested issue.)

The history of the crime of rape is noteworthy. For most of this country’s life, it has been considered a heinous crime, not because of the harm it does to the female, but because it is a serious violation of a man’s property: i.e., his woman (wife, daughter, etc.) Thus, in the Jim Crow South, a black man accused of raping a white woman was invariably subject to death by lynching, whether judicial or extra judicial. If a white woman consented to sex with a black man, her only salvation was to “cry rape.” Even if everyone knew that she was promiscuous, the honor of the men who owned her had to be upheld by the fiction that claimed to believe her cry. After the lynching, she might then face punishment almost as severe.  

Because of the injustices resulting from this history, the law began to demand corroboration for the claims of rape, and permitted inquiry into the character, mental state, and reputation of the alleged victim. Over time, this pendulum swung so far the other way that women feared making accusations, police agencies fumbles investigations, prosecutors half-heartedly pursued cases and females felt that they were on trial.

In the 1970’s attitudes again began to swivel. The nascent feminist movement raised consciences about the injustice. In California, and then other states, the law was changed: no more inquiring into the character of the “victim”, more about the character of the accused raper; no more need to corroborate. The biggest change was the increase of women in law enforcement: police, DA’s, judges.

After the reform of the rape law, “lesser” sexual crimes have also been reformed. “Sexual assault” has been treated similarly to rape law, broadening the definition, and increasing the permissible evidence to “corroborate” the alleged victim. (Even though no corroboration of a victim’s word is needed in order to prove guilt, the law now permits many kinds of “other acts” committed by the accused in order to buttress the testimony of the victim.)

(This is why Bill Cosby was convicted, and why Harvey Weinstein faces criminal and civil jeopardy, as of this writing. Although in other crimes, such as robbery, evidence of the accusation of other such crimes is severely limited, so as to preclude the unjust assumption that “if he did it once, he must be a bad person,” in sex crimes the law deems that females need help. This change in the law reversed the previous rule that warned that the uncorroborated claim of sexual assault was hard to rebut and therefore should be viewed “with caution.”)        

The Cosby and Weinstein cases are examples of the actionable forms of offensive sexual acts. (In Weinstein’s case, some of the claims include acts that do not include physical touching, but rather, those that fit a definition of indecent exposure, false imprisonment, extortion, or some other offensive behavior.)

But many of the newsworthy complaints have referred to acts that probably were not actionable in law, but were offensive enough to have serious social consequences once exposed. I am thinking of Al Franken and others who committed “insensitive” and presumptuous acts of touching women, apparently intended as a jest or prank. Franken, while not prosecuted or sued, paid a very high price for his transgression, being forced to resign from the U.S. Senate.

Other men in positions of power have been toppled by exposure of their arrogant presumptuousness toward female colleagues. Using their relative status of superiority to tacitly coerce consent — or at least acquiescence presumed by the lack of vocal objection — these constitute serious acts of intimidation. They have been actionable, forcing resignations, harassment financial settlements, and embarrassment for the institutions affected.

The number of institutions, public and private, that have suffered from these claims is staggering. Schools of every level, government agencies, corporations, the arts (opera, ballet, television, movies, museums) all have been exposed. The entire structure of male dominance and privilege has been shaken to its core.

Now, I have a question as to the next iteration of the evolutionary tree. Since the Biden controversy relates to offensive invasions of personal space, a much broader definition of “offensive touching,” I wonder what the next steps will be.

Mostly I wonder how a boy or young man is expected to behave toward a girl or young woman and, just as importantly, how she is to behave toward him.

Years ago, when my son was in college, I saw a TV documentary about an incident at Brown University. As reported, a co-ed dorm keg party was in full swing. A co-ed who had drunk too many beers entered a room of a boy she liked, offering a drink and inviting him to the party. He demurred, citing the need to study in order to maintain his scholarship status. She pursued the subject, and eventually, they had sex on his bed.

The next morning the girl awoke with a bad hangover and worse regrets. The friend she told the story to was shocked: she was raped! She was intoxicated and therefore unable to consent. It is the male’s responsibility to refuse the drunken offer of sex.

Technically, that is the law and he could have been prosecuted for rape. Apparently, he got off easily: lost his scholarship and his Brown degree.

I was so terrified by this story that I (only slightly kidding) concocted a questionnaire for my son to submit to every date, insisting that he elicit written consent to any and all potential acts, which I carefully enumerated from my vast glossary of terms. I suggested that lawyers be “on call” for clarification and FAQ’s during the course of the date.

Luckily, he never needed my legal expertise in this field.

Now, I shudder to think what boys face in today’s murky social climate. Are they still expected to initiate sexual contact? How can they dare to do so without risking accusations of offense?

Under the present law, the male may not presume consent from signals, or words that are anything less than unequivocal acceptance of the offer. Further, even if consent is given, it may be withdrawn at any point, and it is the male’s duty to “withdraw” on penalty of violating the letter of the law.

In practice, especially in adolescence, contacts may begin slowly, and then gain momentum very quickly as emotions take over. The female, no longer willing to be passive, must take more responsibility for initiating any steps. The male must now control his urges, acquiescing to the wishes of the female, no matter how ambiguously or inconsistently she expresses hers.

Should the female be required to make her feelings known more clearly to the male? In at least early puberty, girls are more mature than boys of the same age. Shouldn’t they be the ones who set the boundaries in an explicit manner rather than allow it to be shrouded in esoteric codes that the boy can scarcely be expected to interpret?

Men get it: the girl or woman wants to be the one who decides whether she will act the prude, a tease, or a slut — or all of these at any moment she chooses. She doesn’t want boys or men to decide for her. Okay, how does she want boys or men to respond to this? How is the boy to know? What if he misreads ... and is punished?

And these lyrics by Buddy DeSylva (1922), sung by Judy Garland, Diana Krall, and many others to George Gershwin's melody, is now certainly obselete—perhaps should be censored:

"You really shouldn't have done it
You hadn't any right
I really shouldn't have let you
Kiss me

And although it was wrong
I never was strong
So as long as you've begun it
And you know you shouldn't have done it

Oh, do it again
I may cry no, no, no, no, no, but do it again
My lips just ache to have you take
The kiss that's waiting for you
You know if you do, you won't regret it
Come and get it

Oh, no one is near
I may cry oh, oh, oh, oh, oh, but no one can hear
Mama may scold me 'cause she told me
It was naughty but then, please, do it again
Yes do it again, and again and again and again and again ...