Sexual misconduct accusations against Donald Trump have spawned a national moment of reckoning. Several allegations involve the nonconsensual touching of various intimate body parts, and these allegations are clearly criminal. But a surprising number of women are recounting a different type of assault by Trump: namely, assaultive kissing. The pattern that has emerged is aptly described by Trump himself, who bragged on the instantly infamous Access Hollywood tape: “I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait.”
How does the law respond to kissing without consent? The answer depends, as it often does, on context. Most workplaces and all federally funded schools and universities are governed by civil rights statutes that prohibit discrimination, which has been defined as including sexual harassment that creates a “hostile environment.” Often, the behaviors at issue in hostile environment cases include unwanted kissing along with other sexual violations. But kissing, even without the touching of “intimate body parts,” can provide a sufficient basis for civil liability against the employer or school.
The idea that sexual harassment—even that falling short of rape—undermines women’s equality grew out of the pioneering work of legal scholar Catharine MacKinnon. In 1979, she published Sexual Harassment of Working Women, which revealed the importance of power to practices of sexual violation. Sexual assault, MacKinnon wrote, “seems less an ordinary act of sexual desire directed toward the wrong person than an expression of dominance laced with impersonal contempt, the habit of getting what one wants, and the perception (usually accurate) that the situation can be safely exploited in this way—all expressed sexually.”
An understanding of sexual harassment as a form of domination is consistent with the presence of personality traits commonly found in sexual predators. One psychological profile in particular is associated with what evolutionary psychologist David Buss has characterized as “a sense of entitlement.” This perceived entitlement can manifest in a range of sexual violation—even a kiss can constitute an expression of power.
Unlike laws that regulate sexual harassment, however, the criminal law is rarely invoked in response to nonconsensual kissing. In some states, the misdemeanor sexual contact statute designates off-limits body parts but excludes the mouth. (A typical list might include the genitalia, breasts, and buttocks.) But about half the states have indeed outlawed the nonconsensual touching of “intimate” body parts, which courts have generally interpreted broadly to encompass the thigh, navel, and mouth. Even in these jurisdictions, however, “kissing only” prosecutions are exceedingly rare. Instead, cases involving nonconsensual kissing tend to feature either the additional touching of other intimate body parts or the victimization of teenagers. (Children and other uniquely vulnerable populations typically fall under a separate statute.)
One unusual case to proceed without these aggravating factors involved an Idaho computer repairman who kissed a woman during a house call. At trial, the woman testified that she was cornered and grabbed before she was kissed; she immediately called the police when the man left. According to the defendant’s account, he “figured the woman was lonely and might want companionship.” In any event, he was found not guilty.
Perhaps this acquittal reflects a looming impediment to using the criminal law to punish assaultive kissing. The “stolen kiss” remains a deeply engrained cultural phenomenon—one that, as Christina Cauterucci observed in Slate, “springs from the prevalent belief that while an unwanted kiss might be uncomfortable, it’s ultimately benign; that since it doesn’t involve sex organs or any body part usually covered by clothing, it’s not a form of sexual assault.”
The best hope for challenging this belief system is found in our ongoing migration toward affirmative consent. To be sure, there lies a vast disconnect between the legal treatment of consent on and off college campuses. Yet there is good reason to expect this gap to close in the coming years as a generation enters adulthood having been taught that silence and passivity cannot be interpreted as sexual consent, nor can women be treated as objects to be acted upon.
The law won’t possibly deter the man who presumes that, when it comes to women, he can “do anything.” But this man is an outlier. For most of us, transforming the meaning of consent holds great promise.
