Numerous media outlets are reporting that Pennsylvania has banned the touching of a pregnant person’s belly without permission with a “new” or “renewed” or “expanded” law. However, it is already illegal to touch a person without consent in every state, pregnant or not. That this isn’t common knowledge is a big problem with far-reaching implications for women.
The reported facts of the Pennsylvania story are that a man went to his pregnant neighbor’s house, where he hugged her and touched her stomach after she told him not to, and she pushed him away. Police cited the man under Pennsylvania’s harassment law, which has long been on the books. That he was charged under that law suggests his touching was an ongoing problem, though media outlets have implied he was charged for a single well-intentioned pat on the baby bump. Even if that had been the case, everyone should know that even a one-time non-consensual belly rub is unlawful—it’s a tort.
A tort is breech of civil law for which the injured party can sue. (In a criminal case, the state is the party; the victim is only a witness.) A person who intentionally makes a “harmful or offensive contact with the person of another” commits the tort of “battery.” The “tortfeasor” does not need to cause a physical injury, just an offensive touching. This is because “every individual’s person is sacred and no other has the right to touch it.”
This is a fundamental legal principle most of the public isn’t aware of.
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A WCBS reporter who interviewed New Yorkers about the Pennsylvania story informed viewers that “there’s not much you can do about a stranger touching your belly in New York.” This is wrong, and dangerously so. Aside from the fact that New York has a harassment law that includes language identical to that in Pennsylvania’s law, this illustrates a common misconception that being touched without permission may suck, but there isn’t anything to be done about it.
A lawsuit may not be the best response to every well-meaning stomach touch, but a woman should know she does not need to tolerate such behavior. She can say, “Don’t do that again—it’s against the law.” In the case of the one-off belly rub, it might not be a slam-dunk battery case, depending on the jurisdiction; in some jurisdictions, the tortfeasor only needs to intend to make the contact, while in others the tortfeasor also needs to intend that the contact be offensive, so the groper could argue he or she didn’t know it was offensive. But anyone who has been told “Don’t touch me” once is on notice. And if we all treat non-consensual touching as something that is not OK anywhere, rather than an oddity of Pennsylvania law, no one will be able to claim they didn’t know their touching could cause offense.
The stories of pregnant women who were repeatedly touched by the same person are especially disconcerting. One Gothamist commenter wrote, “I worked with a guy who insisted on coming up and rubbing my belly even though I kept telling him he was harassing me and it was pissing me off.” He kept doing this until she hit him, she says.
The law is supposed to minimize the need to resort to self-help. No one should feel she must physically defend herself from unwanted touching on a daily basis. Tell the groper he is breaking the law. If that doesn’t stop, tell your boss, a lawyer, or the police.
The law should deter people from wrongdoing, but it doesn’t when no one knows what the law is. The fact that so few people know an offensive touching is a tort means perpetrators aren’t deterred and victims won’t seek recourse.
Offensive touching is also a crime in most jurisdictions. Some states’ definitions of battery mirror the tort in not requiring physical injury. In others, battery requires an injury, but there are other offenses that do not. For example, in New York criminal battery requires an injury, but “forcible touching” does not.
Everyone needs to get the gist of what a common law battery is. A perennial, and seemingly trivial, example of how nobody does is that of
a pie in the face of a public figure. Protesters attempt to hit some controversial figure, typically a conservative, in the face with a pie, and media commentators treat it as harmless silliness. When the pie-thrower is charged, he is shocked. Media reports may mention he was charged with assault or battery but fail to define the crime (or mention it’s a tort). Never is there any explanation of the fact that “unlawfully touching” a person, including by a substance put in motion (the pie), is a crime in the jurisdiction, as is making a person fear an unlawful touching (that’s typically called an “assault”).
I once saw a feminist organization one would expect to be particularly sensitive to the non-consensual touching of women celebrate the 35th anniversary of anti-gay activist Anita Bryant being hit in the face with a pie by posting an artist’s rendering in a pop-art style of Bryant’s cream-covered face on its Facebook page. A student who threw a pie at Ann Coulter indicated his lack of understanding of his actions by telling a reporter, “When throwing a pie can be called assault and bombing civilians called collateral damage, you gotta laugh to stay sane.” No one should be surprised that touching or throwing things at people is illegal. It is a failing of our legal profession, educational system, and media that so few people know they have the right not to be touched and the obligation not to infringe the bodily autonomy of others.
Pie-throwing and belly-rubbing are useful examples because it is understandable that a non-lawyer might not know that these actions can be a tort and a crime. Much more detrimental and difficult to understand is the rash of recent examples of young people witnessing, recording, and distributing video of the touching or penetration of incapacitated women who failed to comprehend they were witnessing, or committing, a crime and a tort.
A witness in the Steubenville case explained he did not try to stop the rape he was witness to because “at the time, no one really saw it as being forceful.” Another tweeted, “if they’re getting ‘raped’ and don’t resist then to me it’s not rape.” The prosecutor explained that testifying witnesses “don’t think that what they’ve seen is a rape in the classic sense.” These statements and the inaction of the kids who were there indicate ignorance of the fact that you can commit a crime and a tort irrespective of whether there is penetration of a particular kind or at all, the amount of force, or the type of injury. Rape isn’t defined by popular opinion, it’s defined by statute. Even without a statute, it is a common law battery.
Additionally frightening is the Steubenville prosecutor’s speculation that only one in a thousand teens would realize taking a video of a naked minor is illegal. If our society provided young people with a basic understanding of the law that governs their lives, they would assume this was illegal, regardless of whether the criminal laws of their state have caught up with cyberbullying, because sending around naked pictures of someone is almost certainly the tort of intentional infliction of emotional distress, among others. And victims who knew the law was on their side might seek help.
That there have been so many cases of young people committing and distributing pictures of sexual batteries is obviously a much deeper problem than ignorance of the law. However, ignorance deprives the law of its deterrent effect and deprives victims of remedies and support. We can say that everyone knows these things are wrong, but prosecutors are dealing with boys “who seem to think they are committing pranks with phones and passed out girls.”
This kind of confusion would not be possible if the average American knew that touching a pregnant woman without consent is illegal, because touching anyone without consent generally is. Where morality and empathy have failed, we can at least be clear about the law, even if it is unevenly enforced. You have the right not to be touched without permission, whether you are pregnant, or on the subway, or at a party. Under no circumstances is your body public property.