Shulevitz introduces a hypothetical proposed by 70 of the 4,000+ members of elite American Law Institute:
Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. Person B does nothing, but six months later files a criminal complaint. Person A is guilty of ‘Criminal Sexual Contact’ under proposed Section 213.6(3)(a).
I'm not a lawyer, but this doesn't seem like a big issue. The authors simply take for granted that the "thrill" constitutes "sexual gratification," but does it really? Would person B actually complain? Would a prosecutor prosecute? Would a judge or jury find that holding hands constituted sexual gratification?
And, maybe, it really might be a bad idea to hold someone's hand without their express permission.
Shulevitz also worries about disproportionate penalties. Even per the above, if Person B complains, a prosecutor prosecutes, and a judge or jury actually finds Person A guilty, should Person A above be imprisoned for years and be publicly registered as a sex offender?
Well, duh, no. We can create degrees of "Criminal Sexual Contact," for which inappropriate hand-holding could be only an infraction. Our present definition of criminal sexual contact only prohibits the most extreme behavior, and thus warrants a proportionate penalty; if we're going to radically broaden the definition, then we can just as easily make the penalties proportionate.
All these sorts of weird edge cases are important, and the best minds of law should think about them carefully and write the statutes appropriately. But we have hundreds of years of experience fine tuning laws like this. This kind of minutia is appropriate for expert legal debate, but not to challenge the political concept of affirmative consent.
Essentially, Shulevitz asks what might happen if "victims", politicians, prosecutors, judges, and juries all act in extraordinarily moronic ways or with unaccountably bad faith. But the law is not set up as algorithms to regulate the behavior of morons. The law applies to, and is administered by, human beings, not sphex wasps.
It is very important to remember that affirmative consent is being discussed to solve a real problem: women, often young and vulnerable, getting pressured or intoxicated and not actively protesting completely unwanted sexual activity. I'm willing to be a little extra careful about holding hands to decisively prosecute these real cases.