I think it’s time to talk about the definition of assault.

Let me first make it clear that my aim is neither to assert nor to deny that what Aziz Ansari did to the ‘Grace’ of the Babe article is sexual assault.

My aim is to examine some of the responses to the single use of the word ‘assault’ in that article, and perhaps clarify a thing or two.

Briefly, the relevant bits of the original Babe article: Grace is quoted saying ‘“It took a really long time for me to validate this as sexual assault”’, and ‘“I felt violated”’.

In my favourite New York Times article ever, Bari Weiss called the story an ‘insidious attempt … to criminalize awkward, gross and entitled sex’.

Kyle Smith, in his National Review article entitled ‘Feminists, Stop Bad Sex Before It Happens’, claims that Ansari’s behaviour ‘fell well short of a crime’ but that, ‘following the guidelines that have been established on campus’, the young woman mistakenly ‘channeled her bad feelings into the language of crime.’ He quotes her phrase ‘I was violated’ and states that here she is ‘implying that not merely assault but actual rape took place.’ But, he says, ‘no crime occurred. Sex willingly embarked upon by both parties, even if one party feels reluctance or disgust or shame, is not a crime.’ (I should point out here that it’s a bit of a stretch to claim that Grace’s ‘I felt violated’ is in any way intended to mean ‘I felt like actual rape took place’, when ‘to violate’ as ‘to rape’ is hardly in common contemporary usage; it is perfectly plain that she is using it in its more dominant and current sense as ‘to fail to respect’. This is a shabby little attempt on Smith’s part to smear the article with the panic-inducing taint of the false-rape-allegation myth.)

In a Guardian Opinion piece coming from a very different angle to Smith’s, Tiffany Wright also protested Grace’s use of the word assault: ‘Assault is not a feeling. Discomfort is a feeling, embarrassment and hurt and anger are all feelings, but assault has to have an objective definition because of the legal and social ramifications that come with it. When we act as though disrespect, harassment, assault and rape are all different words for the same thing, the conversation starts to lose its legitimacy.’

What was interesting, though, was that neither Wright nor any of the others actually provided that ‘objective definition’ they claimed was being trampled all over.

Now, it’s important to mention that the terms ‘assault’ and ‘sexual assault’ exist beyond their legal usages, as do countless other terms, such as ‘murder’ and ‘fraud.’ To use them is not, in fact, necessarily to engage with a legal framework of crime and punishment; it certainly doesn’t follow from the use of the word ‘assault’ that one is suggesting someone ought to be tried in a court of law. There is absolutely nothing to suggest that ‘Grace’ was accusing Ansari of a crime in any formal or legal sense. Her text message to him after the event was polite and aimed at informing rather than accusing. Read it here.

I would argue that the whole ‘exposé’ was, similarly, aimed at informing rather than punishing – but I’ll return to this. For now, let’s give the question of legal definitions some consideration. The writers above were angry she’d used the term ‘assault’ and adamant she’d used it incorrectly, but none of them actually quoted the law.

According to the United States Department of Justice,

‘sexual assault is any type of sexual contact or behavior that occurs without the explicit consent of the recipient. Falling under the definition of sexual assault are sexual activities as forced sexual intercourse, forcible sodomy, child molestation, incest, fondling, and attempted rape.’

Notice that this legal definition is rather broad, embracing a number of very different behaviours; if violations of different magnitudes are being grouped under one umbrella, this isn’t Grace’s doing. Neither is it unusual in law: the acts of stealing a loaf of bread and stealing a car are both termed theft; all murders are not equally heinous, nor do they receive the same penalties. The reality is that some sexual assaults are ‘worse’ than others: it doesn’t follow that they are not all sexual assaults.

Now, is there anyone who can say that Grace gave ‘explicit consent’ to having her breast touched, to being digitally penetrated, or to receiving oral sex?

Let’s revisit her account:

‘Within moments, he was kissing her. “In a second, his hand was on my breast.” Then he was undressing her, then he undressed himself. She remembers feeling uncomfortable at how quickly things escalated.

When Ansari told her he was going to grab a condom within minutes of their first kiss, Grace voiced her hesitation explicitly. “I said something like, ‘Whoa, let’s relax for a sec, let’s chill.’” She says he then resumed kissing her, briefly performed oral sex on her, and asked her to do the same thing to him. She did, but not for long. “It was really quick. Everything was pretty much touched and done within ten minutes of hooking up, except for actual sex.”

She says Ansari began making a move on her that he repeated during their encounter. “The move he kept doing was taking his two fingers in a V-shape and putting them in my mouth, in my throat to wet his fingers, because the moment he’d stick his fingers in my throat he’d go straight for my vagina and try to finger me.” Grace called the move “the claw.”’

Now, there certainly are situations in which people are coerced into performing acts – such as ‘giving’ oral sex – but that can be harder to argue, so let’s focus here on Grace as ‘the recipient’ of ‘sexual contact or behavior’.

Is there any evidence in her account that she gave ‘explicit consent’ to any of the contact or behaviour described?

No.

Of course, there is the possibility that her account makes omissions – but none of the writers quoted above who so vociferously denied that this episode involved assault made that accusation. They were drawing their impressions and inclusions from the Babe piece, the only detailed evidence that we have to go on. Ansari declined to say more than that he thought the sexual contact had been ‘by all indications completely consensual’. He does not actually cite any instances of ‘explicit consent.’ On what grounds should we believe there was any?

(We’ll leave aside for now the fact that she actually gave a number of indications of dissent.)

I’d like to just mention the UK definition of assault while I’m here: from the Sexual Offences Act 2003, Section 3 (still current in 2018):

Sexual assault

(1) A person (A) commits an offence if—

(a) he intentionally touches another person (B),

(b) the touching is sexual,

(c) B does not consent to the touching, and

(d) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

 

If Ansari’s response to the story is sincere, he believed that there was consent; but was this ‘reasonable’? Is there any evidence of his taking ‘steps’ in order ‘to ascertain whether’ Grace really did consent?

In the absence of any such effort, his ‘belief’ may not be ‘reasonable’, the sexual touching not consensual, and the term ‘assault’ potentially applicable.

But I repeat, I’m not here to argue that it was an assault and that Ansari should be charged. My point is that those writers who have accused ‘Grace’/Babe of abusing the letter of the law have cast their stones rather wide of the mark. If she had meant to accuse Ansari of sexual assault in a legal and formal sense (and I do not believe that she did), the letter of the law could actually have upheld her.

Whether any court would have actually convicted Ansari is another matter.

I find it interesting – almost amusing, nearly appalling – that both US and UK law offer definitions of sexual assault that are more progressive than those implicitly held by the three writers quoted above, two of whom at least consider their own thinking to be feminist.

 

I’ll be back soon to consider why this could be.