CAN UNSOLICITED POETRY BE SEXUAL ASSAULT?

By paulosophicalvimplications on July 31, 2018 • ( 0 )

I have no problem with your sexual orientation provided you stop calling it that.

You say you’re not attracted to women. Well, I’m not attracted to most of them either. And of the ones I am attracted to, the last thing I want is to have sex with them. Kissing, fondling, cuddling, oral, anal … sure. But what do any of these have to do with sex? I was taught that sex is about how certain organisms reproduce, namely that amoeba duplicate themselves by cell division whereas we do it by combining reproductive cells. But unless the birds-and-the-bees talk I was given when I was ten was all tongue in cheek, nothing from the list above is going to eventuate in offspring.

It’s true that some things on that list arouse in us the same feelings we have when aroused sexually. But so does having to sneeze. It’s true that the release we feel when we ejaculate into a hand or an anus or a mouth is indistinguishable from the release we feel when we ejaculate into a vagina. But that doesn’t make them the same thing.

I’m not saying that it’s the intention that marks the distinction, because more often than not what we’re intending when we ejaculate into a vagina is the same thing we’re intending when we ejaculate into a mouth. Rather I must be drawing a strict liability distinction. If but only if you ejaculate into a vagina are you, knowingly or not, incurring the possibility of offspring. And that’s why it’s called having sex.

But hang on. I had a vasectomy when I was thirty, after which I wasn’t incurring the possibility of offspring, and so on my account I haven’t had sex in thirty-eight years. Moreover, what if I have vaginal intercourse but fail to ejaculate? I might say I had unsatisfying sex, but would I say I hadn’t had sex at all?

So clearly I have to modify my account. The problem is that any such modification is going to invoke an endless series of embedded counterfactuals. But what will constrain my counterfactualizing? If I say something about how it would incur the possibility of reproduction if I hadn’t had a vasectomy, why can’t my critic point out that anal sex would too if the anus was also a vagina? I suspect the more I try to repair my position the worse it’s going to get for me.

So all I have to offer is a tu quoque. Your definition of sex is too broad. If I read you a poem without asking if you’d like to hear it, I could be guilty of a sexual assault. Oh the fun I could have if you try to define what you mean by sex!

There is, of course, the fallback we-know-it-when-we-see-it position. But that’s precisely the protocol that’s been getting us into so much jurisprudential trouble. Someone feels she’s being sexualized, and so she must have been. It’s the way he shook my hand.

So all I’m saying here is that the term sex, and those innumerable words in its locution-set, are carrying too much baggage to be of any use save in their original and so paradigmatic heterosexual coital sense. So all I’m suggesting here is that we coin another term for the kind of physical and/or verbal contact we’re concerned about, and then add adjectives like ‘consensual’ or ‘uninvited’ or ‘sensitive’ or ‘exploitative’, or whatever positive or negative spin we want to put on it.

Some jurisdictions have already done this, re-describing rape as simply a species of assault. Others never did distinguish between the two. So to what purpose do we feel a need to distinguish assault and sexual assault? To the same purpose, I suppose, we feel a need to distinguish a crime and a hate crime. The latter is an aggravating element, which we’d like to see decided by the jury in its verdict rather than the judge in her sentencing. All other things being equal, being beaten is one thing. Being stripped and then beaten is something worse.

But since, on the account I’m flogging here, neither being beaten nor being stripped and then beaten bear any more relation to sex than does being read a poem, I’m proposing we re-describe the stripping as having something to do with involuntary bodily exposure, or at least something like that, and penetration as having something to do with the violation of one’s bodily boundaries, or something like that.

Why? What’s wrong with the current grab bag of these being sexual aggravations? Nothing, except that, as things stand, for aught I know your sexual orientation refers to your taste in poetry. Call me a recalcitrant bigot if you like, but dammit I want to be free to mock your love of Emily Dickinson without being accused of being whatever-you-are-phobic!