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This might sound off, at first, but bear with me as I explain.

As a thought I have had for sometime, and then later brought to light by other people like in this article, it is not possible to actually touch anything or anyone.

The sensation of touch is fulfilled essentially by electrons repelling where the waves pass through.

Given this is the case, there are many laws which do not have a clear definition of what touch actually consists of, instead focusing more on the action and implied state of matter making contact with matter (which is not possible) and what matter can be (an object, person, etc.).

Given that touch is not possible except under the theory of nuclear fusion where the state of an atom is fused with another atom both requiring an enormous amount of energy of an inconvenienced amount, and releasing under the theory, an unending source of energy, it is safe to say that this doesn't happen in (for example) a fist fight (even though the participants may feel like it had]).

In court, means, motive and opportunity must exist beyond a reasonable doubt. In a case involving a physical contact allegation, wouldn't quantum mechanics and spacetime eliminate the possibility of means?

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    You're defining to touch in an extremely restricted and non-commonsensical way, which is not at all related to the commonly understood way of defining it. Why do you think that would be an appropriate thing to do, when facing what are likely to be serious charges?
    – user4657
    Nov 12, 2016 at 12:01
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    "Common sense" is considered under the "reasonable person test", which has decades and tonnes of precedent in case law. Legal jurisdiction has never been bound by physical possibility.
    – user4657
    Nov 12, 2016 at 12:17
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    Considering that humans have understood what a "touch" is for as long as we have existed, and we have only begun to understand what an atom is in the last 200 years or so, the unusual sense of "touch" meaning "atoms in contact" could not have influenced the common-law understanding of what a touch is. The recent discovery of how atoms interact doesn't have any impact on the long-established common law understanding of the action defined as a "touch".
    – apsillers
    Nov 12, 2016 at 12:57
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    Also, when you say that two atom touch during fusion, how do you understand what "to touch" even means? It is only by analogy to your own experience and observation of touch (or quantum-pseudo-touch, if you must) in the everyday physical world. Such an everyday experience of touch has alway been what the legal sense of "touch" refers to.
    – apsillers
    Nov 12, 2016 at 14:06
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    This is such a frivolous and disingenuous line of reasoning that it doesn't even deserve a substantive response. An attorney who raised an argument like this one in a civil case would probably be sanctioned by the judge under Rule 11.
    – ohwilleke
    Nov 12, 2016 at 17:22

1 Answer 1

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tl;dr

No, it won't be a viable defense.

Background

Touch has an established interpretation at common law.

The common law is judge-made law. If an offense involving touch existed at common law, then the meaning of touch is "defined" by the judicial opinions themselves. As the comments have noted, you'll be able to find hundreds of years worth of opinions where judges have, by example, determined what qualifies as touching. Putting your hand on someone, yes. Spitting on someone, yes. Blowing from a distance, no. These examples make up the common law definition of touch.

But how, you may ask, would the common law evolve to include new information? The answer is clear. Say Jill purposely hits Jack in the face with a shovel. When appearing before the judge, she says, "we have a new understanding of atomic proximity, so technically the atoms in the shovel never made contact with the atoms in Jack!" The judge will say, "that's interesting, but it seems irrelevant to what we're trying to accomplish with the law: Jack still had to go to the hospital. Judgment for Jack." Now the common law has incorporated the new information (...at Jill's expense).

Touch isn't defined at the atomic level when interpreting a statute.

Some offenses are defined, not by judges, but by statutes enacted by legislatures. If the language in the statute is ambiguous, courts have to interpret its meaning. This is often done by looking at the purpose of the statute or by looking at the plain meaning of the language.

Statutory interpretation: purpose

Where a court does not employ the plain meaning approach, it will often look for evidence of the drafter's intent. In this case, the court would ask what the purpose of a law like battery is. They'd probably conclude it has to do with preventing harm and offense. In fact, they probably included things like that in the statute itself. So they'd wonder if defining contact at an atomic level would help to prevent harm and offense; that seems unlikely.

In so doing, the court may analyze the legislative history. It may look at events that happened around the time the law was enacted: did the legislature propose it because people were hitting each others' faces with shovels? It might even appeal to the state of the common law at the time the statute was enacted for the proper definition.

Statutory interpretation: plain meaning

First, it might help to look at an example from District of Columbia v. Heller, 554 U.S. 570 (2008). There the Court was tasked with interpreting some Second Amendment text. In doing so it said, "we are guided by the principle that '[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.' Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings." Id at 576-77.

Statutory interpretation also makes use of this plain meaning approach. As stated by the Court, "where the language of an enactment is clear, and construction according to its terms does not lead to absurd or impracticable consequences, the words employed are to be taken as the final expression of the meaning intended.” United States v. Missouri Pacific R.R., 278 U.S. 269, 278 (1929); see also Black's Law Dictionary (10th ed. 2014).

This is bolstered by the practice of explicitly defining words with technical meanings in a definitions section of the statute. For example, Article 9 of the Uniform Commercial Code employs a number of terms in a technical sense, and 9-102(a) defines 81 words that are intended to take on a technical meaning.

Another example is the Illinois battery statute, 720 ILCS 5:

Sec. 12-3. Battery. (a) A person commits battery if he or she knowingly without legal justification by any means (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.

The statute doesn't have a technical definition for "physical contact." So under plain meaning we'd construe it in its common sense. Merriam-Webster's Dictionary (a favorite of U.S. courts) defines touch as, "to bring a bodily part into contact with especially so as to perceive through the tactile sense." That definition implies that tactile sensation is what triggers (2), not any atomic concept of proximity.

If you're interested in further reading, proper interpretation of the term "physical contact" came up in the insurance contract setting in Mount Vernon Fire Ins. Co. v. Busby, 219 Cal. App. 4th 876 (2013).

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  • Thank you Pat. I guess what I am curious about is when there is no clear definition. Yes, convictions have likely been applied under the assumption , however I have been unable to locate (going way back even) law where 'touch' or 'contact' is clearly defined where usually the terms are defined to prevent them from being used differently as language evolves in the future. Nov 16, 2016 at 17:36
  • @SamuelJackson You almost have to think of the common law way of getting at a definition as machine learning rather than axiomatic.
    – Pat W.
    Nov 17, 2016 at 0:54

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