I awoke this morning to a tweet from National Review columnist Heather Wilhelm that said, “Modern feminism: 1. Go on awful date with awkward/gross/aggressive famous person, but lack the agency to get up and leave. 2. Famous person texts, clearly clueless, gets scolded, apologizes. 3. Stay anonymous, but shame him in front of the whole world.”

This tweet reminded me of the “strong person,” theory of the First Amendment, where a properly functioning free speech doctrine generally requires that listeners deal with emotional upset, have the agency to turn away from or ignore speech they would rather not hear, and use counter-speech to undermine unreasonable positions.   So much of how we discuss sexual harassment and sexual assault touches upon notions of agency and harmful speech in ways that also implicate our thinking on First Amendment doctrine.  I planned on blogging about some of the similarities between notions of agency in the First Amendment and in the sexual assault context.  However, then I read the link attached to Wilhelm’s tweet.

The story – an exclusive on a website called “babe” – involved worse conduct than I expected based on the tweet.  Aziz Ansari was oblivious to a woman’s desires not to sleep with him, and kept pushing her to do so in fairly objectifying ways.  That said, her description of the story was much worse than the actual events.  The woman, who remained anonymous to protect her own identity, never actually had intercourse with Ansari, and appeared to consent to a range of activities that required her participation.  Nonetheless, she called the incident “sexual assault,’ despite the fact that she did not leave the apartment (until she decided to) or clearly say, “no.”  Sexual assault, to this woman, occurred because Ansari ignored her “clear non-verbal cues.”  He also kept attempting physical intimacy despite some less obvious verbal cues, like telling Ansari that she didn’t want to feel “forced,” because then should would hate him.

I think it is time, at this cultural moment, to define and analyze the proper legal definitions of terms like sexual assault and sexual harassment.

As I tell my students, do not use legal conclusions when describing facts.  Someone drives negligently only if he meets the elements of negligence, so a factual account should state the speed limit and the driver’s behavior, not conclusorily label it as negligent.  Sexual assault does not happen because someone comes to the realization, after chatting with friends, that she has been assaulted; it occurs when the legal definition of either the crime or the tort of sexual assault have been met.  Before any more stories emerge about women’s genuinely terrible experiences with men, and before any more prominent individuals get ousted from their jobs, there should be a clear consensus as to how we use particular legal terms.

If Ansari’s accuser did not experience sexual assault, her tale in some ways amounts, as one writer noted, to humiliating “revenge porn,” – although there are two distinctions between her story and revenge porn.  First, her story appears to be protected speech whereas there are arguments that revenge porn is not protected speech.  Second, the woman who recounted her story for “babe,” was interested in dismantling Ansari’s onstage persona, not just sharing a sexual tale to enact revenge because she felt jilted by him (although she may be fooling herself as to what extent she is motivated by true civic altruism).

That said, her tale lacks both the agency and the courage required to promote healthy systems that allow for choice and for efficient allocation of activities.  Ansari was creepy and clueless.  He acted as I had been told as a younger person men would act — in a way that demonstrated he only wants one thing.  Our job, however, is to say no if we disagree with that universe.  In this way, the woman who also only wants one thing from a particular encounter can have what she wants, and those who do not can say no and walk away, as long as there isn’t any genuine force.  That appears not to be the agency-promoting world many want to live in, but what matters most, before accusing people of sexual assault, is the actual legal elements of that term.

The definitions of sexual assault and sexual harassment, two very different things, vary from jurisdiction to jurisdiction, although there are commonalities among states.  In California, where the young photographer from our “babe” story appears to have met Ansari, felony sexual assault of an adult requires penetration, sodomy, or oral copulation effectuated by “force, violence, duress, menace, or fear of immediate and unlawful bodily injury.”  Sexual battery, as a misdemeanor, occurs when a person “touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.”  As a felony, sexual battery occurs when the victim is physically restrained.

The woman’s story in “babe” does not appear to involve any true “duress,” although you should read the account for yourself.  I would not label her account as a sexual assault or even misdemeanor sexual battery under the criminal code, although misdemeanor sexual battery is a closer case.  For a touching to be against the victim’s will, the contact has to be without the victim’s consent.  Sexual battery is a specific intent crime, so a “mistaken but honest and reasonable belief of the victim’s consent” absolves the defendant of criminal intent.

Affirmative consent is the standard for educational institutions receiving federal funding in California, not for the general public.  Ansari appears to have had an honest belief in the woman’s consent, and for the purposes of the criminal law, this belief may have been reasonable.  The victim never unambiguously said no, and continued the evening, even while she expressed reservations about what was occurring.  Equivocal conduct is evidence of a mistaken but reasonable belief in consent.  If the woman is alleging that Ansari understood that the contact was unwanted and did not care, I’m not sure that claim is validated by the evidence she provides and his behavior afterwards — but it is one plausible interpretation of the events.  There’s a circularity there, however, because if someone agrees to activities but expresses some misgivings, her true heart of hearts is likely not sufficient to demonstrate lack of consent — even if Ansari may know it.   We are allowed to consent to activities that some part of us really doesn’t want to do.

As a tort, in order to impose civil (not criminal) liability, sexual assault would satisfy the elements of battery.  A battery, as most states define it, is the intent to effectuate an offensive or harmful touching without consent.  Because battery is an intentional tort, Ansari must have acted with either the purpose of creating the contact, or the knowledge that the contact would likely occur.  And, in many states, he would have to have the purpose or knowledge not just to cause the contact, but to cause an offensive contact – meaning he would have to know the contact was offensive to a reasonable person.  In addition, actual or apparent consent is an affirmative defense that can be pled by a defendant, and, in some states, lack of consent must be proven by the plaintiff.  Generally speaking, therefore, if Ansari believed that the woman consented, he cannot be liable for the intentional tort of battery because (1) he would not have the intent to cause an offensive touching, in states that attach intent to the offensiveness element, and (2) there may have been apparent consent.

Ansari’s accuser is more likely to win a tort case against Ansari than a criminal conviction.  However, she used the term “sexual assault,” which sounds more in criminal law than tort law.  She is, of course, permitted to use legal terms in sloppy ways, especially if she is not a lawyer.  The media, however, must begin to understand, appreciate, and correct mislabelings of unfortunate and offensive incidents as sexual assault.  Treating Ansari as a sex offender is a clear injustice, far clearer than anything he did to distress his accuser.  Plus, women should really reflect on the fact that sexual assault is a legal term before considering themselves victims of it.

A quick word about sexual harassment, because many of the same lessons apply.  Title VII, under federal law, is violated only when sexual harassment is so severe or pervasive that it alters the conditions of someone’s working environment.  One incident is sufficient to constitute sexual harassment if it is sufficiently severe, but a stray comment from a coworker is generally neither severe nor pervasive.  Given that a stray sexual comment cannot be considered sexual harassment at the office, where there are starker restrictions on speech because of the employment dimensions, a cat call is going to be protected speech.  Someone may think of an unsolicited sexual comment as harassment, and may work to change a culture that accepts unsolicited sexual innuendos or comments about strangers’ bodies.  However, it should be recognized that harassment is a legal conclusion that cannot be applied to protected speech, especially if we want to continue to enjoy the benefits of living in a society where unpleasant speech is protected and a wide array of choices and arrangements are not legally deterred.