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  #51  
Old 09-22-2013, 12:57 PM
Jimmy Chitwood Jimmy Chitwood is offline
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Originally Posted by LinusK View Post
Not sure what you mean here. How can someone give consent, affirmatively or otherwise, if he's asleep?
He can't. I'm not sure where the confusion's coming from, but the inability of a person to give legal consent while unconscious is the basis for everything I've been saying.

Last edited by Jimmy Chitwood; 09-22-2013 at 12:58 PM.
  #52  
Old 09-22-2013, 09:56 PM
UltraVires UltraVires is offline
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I think the analogy to the surgeon and unconscious patient is a good one. It's not battery because it is assumed that the unconscious person would consent to treatment which would help him survive and a reasonable surgeon would operate.

In a marriage, or a relationship, if a party protests that he/she was asleep and didn't give consent, the right approach, IMHO, is for the jury to hear evidence on the prior state of the relationship and whether it was reasonable for the instigator to have assumed that consent was granted prior.

Any other construction leads to absurdities such that we all either know of people (or are guilty ourselves) of rape and are therefore sex offenders who need to do time in prison. It is a normal part of many relationships, and I question the real world implications that a "zero tolerance" policy that some are advocating would have on normal, reasonable people.

Why is it only sex that prior consent is invalid according to this thought? If I tell a neighbor that he is free to come in my house and get a drink from the fridge, does he have to ask me every time to not be guilty of trespass?
  #53  
Old 09-22-2013, 10:42 PM
Marley23 Marley23 is offline
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Originally Posted by LinusK View Post
How come?
Because it implies some types of rape are, for lack of a better word, "rapier" than others. It's just stupid, and you most often hear it used when someone is saying one type of assault - whether it's sex with someone who is unconscious or sex under the threat of violence or retribution - is, you know, kinda rape, but not really rape. People who say that stuff are often operating under the assumption that real rape is assault by a stranger in a dark alley, and that's usually not what happens.
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Originally Posted by jtgain View Post
I think the analogy to the surgeon and unconscious patient is a good one. It's not battery because it is assumed that the unconscious person would consent to treatment which would help him survive and a reasonable surgeon would operate.
But that consent applies to a specific instance. It doesn't mean the surgeon can cut you up whenever he feels like it. And you have to be unconscious for a lot of surgeries. That's required. You don't have to be unconscious for sex. Usually that's not what you want.
  #54  
Old 09-23-2013, 06:20 AM
tumbleddown tumbleddown is offline
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Originally Posted by jtgain View Post
In a marriage, or a relationship, if a party protests that he/she was asleep and didn't give consent, the right approach, IMHO, is for the jury to hear evidence on the prior state of the relationship and whether it was reasonable for the instigator to have assumed that consent was granted prior.
But the state of relationship may speak to the state of mind of the instigator, but not of the "instigatee" (for lack of a better word). The relationship might be whole and intact, but if the instigatee doesn't want sex for one of the myriad reasons someone might not want sex, and thus would not have consented if s/he were physically able to (i.e. if they were awake and/or sober) the fact that the relationship isn't rocky doesn't change the fact that there was no consent and wouldn't leave the instigatee feeling less violated. It would only change the likelihood of violation turning into a larger fight or a criminal complaint.

That this means that many people are technically guilty of sexual assault or rape is indicative not with a problem with the law, but with how we as a society understand, or more importantly, fail to understand both personal autonomy and sexual consent. In fact, as a society we're actively hostile to both concepts. In this very thread, both have been derided for no other reason than because they might, at some point, require someone to take a moment to ask first, or because they might spoil someone's fun, without any regard to the person on the other half of the equation whatsoever.
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Why is it only sex that prior consent is invalid according to this thought? If I tell a neighbor that he is free to come in my house and get a drink from the fridge, does he have to ask me every time to not be guilty of trespass?
Your consent for your friend to enter your house is certainly conditional. Even with the most open and casual relationship, there would be times when you would not be okay with a neighbor walking in to "grab a drink" because of what you're doing at the time.

That would apply all the more when you're not at home. You certainly wouldn't expect your neighbor to just drop in and raid your fridge while you're at work, even if they have a key, and even if it's fine in the evening when you get home.

Consider the equivalence, then, between your house when you're not there, and your sexual partner's body when they're not conscious.

Last edited by tumbleddown; 09-23-2013 at 06:22 AM.
  #55  
Old 09-23-2013, 07:26 AM
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Originally Posted by tumbleddown View Post
Your consent for your friend to enter your house is certainly conditional. Even with the most open and casual relationship, there would be times when you would not be okay with a neighbor walking in to "grab a drink" because of what you're doing at the time.

That would apply all the more when you're not at home. You certainly wouldn't expect your neighbor to just drop in and raid your fridge while you're at work, even if they have a key, and even if it's fine in the evening when you get home.
People could have such an arrangement if they so chose - you're assuming they wouldn't, but they certainly could.
  #56  
Old 09-23-2013, 09:47 AM
Really Not All That Bright Really Not All That Bright is offline
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Originally Posted by jtgain View Post
Why is it only sex that prior consent is invalid according to this thought? If I tell a neighbor that he is free to come in my house and get a drink from the fridge, does he have to ask me every time to not be guilty of trespass?
Because trespass law tells us that license is valid until revoked, while criminal law tells us that consent is not. Having said that, it's absurd that anyone would argue that people in an ongoing sexual relationship can't assume the other party consents to sex absent indications to the contrary.
  #57  
Old 09-23-2013, 10:11 AM
Jimmy Chitwood Jimmy Chitwood is offline
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I'm relatively certain that you don't yourself actually believe that people in all ongoing sexual relationships can assume the other party consents to sex in all situations, absent indications to the contrary. So it isn't absurd, and the whole discussion becomes about which category you place each individual instance into, which is a much messier and much less reductive question.

Quote:
Originally Posted by jtgain
Why is it only sex that prior consent is invalid according to this thought?
Because we don't require affirmative consent to sexual activity; we require an absence of non-consent. You can't find consent from the absence of non-consent in a situation where an expression of non-consent is impossible. If you want consent to sex to work the same as consent to enter your home, or consent to surgery, that can certainly be accomplished. But it means we all are committing sexual assault if we don't acquire affirmative consent to each sexual act we engage in. A piecemeal approach that says "implied consent most of the time, but affirmative consent in advance if you're getting drunk or going to sleep or getting choked out" seems to make sexual assault law weirder, less straightforward and even less like any other kind of law under the guise of making it less "special."

It also seems to place making sex more convenient as the highest priority of sexual assault law, which I would prefer to be disfavored.

Last edited by Jimmy Chitwood; 09-23-2013 at 10:14 AM.
  #58  
Old 09-23-2013, 11:49 AM
Really Not All That Bright Really Not All That Bright is offline
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Originally Posted by Jimmy Chitwood View Post
I'm relatively certain that you don't yourself actually believe that people in all ongoing sexual relationships can assume the other party consents to sex in all situations, absent indications to the contrary. So it isn't absurd, and the whole discussion becomes about which category you place each individual instance into, which is a much messier and much less reductive question.
Fair enough, but I certainly do in the case of sleeping or drunk spouses, which is the matter under discussion.
  #59  
Old 09-23-2013, 12:11 PM
gigi gigi is offline
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The examples of waking someone up with the initiation of a sex act are a different thing from having sex with someone who is asleep or unconscious the whole time. The former at least have a chance to express their opinion on the matter. To me, there is a high squick factor to someone essentially using me as a blow-up doll to get off in and I don't know anything about it. Even someone I'm in a commited relationship with.
  #60  
Old 09-23-2013, 05:29 PM
Really Not All That Bright Really Not All That Bright is offline
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... if somebody sleeps through the entire sex act, you're doing it wrong.
  #61  
Old 09-23-2013, 05:39 PM
UltraVires UltraVires is offline
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Originally Posted by Jimmy Chitwood View Post
I'm relatively certain that you don't yourself actually believe that people in all ongoing sexual relationships can assume the other party consents to sex in all situations, absent indications to the contrary. So it isn't absurd, and the whole discussion becomes about which category you place each individual instance into, which is a much messier and much less reductive question.



Because we don't require affirmative consent to sexual activity; we require an absence of non-consent. You can't find consent from the absence of non-consent in a situation where an expression of non-consent is impossible. If you want consent to sex to work the same as consent to enter your home, or consent to surgery, that can certainly be accomplished. But it means we all are committing sexual assault if we don't acquire affirmative consent to each sexual act we engage in. A piecemeal approach that says "implied consent most of the time, but affirmative consent in advance if you're getting drunk or going to sleep or getting choked out" seems to make sexual assault law weirder, less straightforward and even less like any other kind of law under the guise of making it less "special."

It also seems to place making sex more convenient as the highest priority of sexual assault law, which I would prefer to be disfavored.

But let's think real world here. Should your wife or girlfriend get 10 years in jail (or whatever the appropriate punishment is for 1st degree rape) a felony conviction, and registering as a sex offender, for waking you up to a blowjob?
  #62  
Old 09-23-2013, 06:15 PM
dracoi dracoi is offline
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Originally Posted by gigi View Post
The examples of waking someone up with the initiation of a sex act are a different thing from having sex with someone who is asleep or unconscious the whole time. The former at least have a chance to express their opinion on the matter. To me, there is a high squick factor to someone essentially using me as a blow-up doll to get off in and I don't know anything about it. Even someone I'm in a commited relationship with.
But can you turn things around and see it from someone else's perspective?

Given the nature of fetishes, I'm sure there are plenty of people who think it's hot to get drunk, pass out, and then find out later what their significant did to them. Plenty of us here have said that being woken is a turn-on for us. The argument being made against implied consent is that this is always an illegal activity, even if the two parties explicitly discuss their intentions ahead of time.

Or what if you're tied up and gagged during the sex act? Some people get off on that, but you're not exactly able to give/revoke consent in that situation - especially if you guys forgot to set up safe words ahead of time. Do we put someone in jail for that?

Or let's say you and the significant other haven't discussed it, but you're both drunk after some night of partying. You pass out, but the SO - who clearly has impaired judgment - goes ahead and has sex with you anyway. Should the treatment of this event automatically escalate to a criminal activity? Or should there be a conversation first where you say "Hey, that's not cool. Don't do it again."

And just to be clear, I'm not condoning rape, spousal or otherwise. I think that consent should revokable in advance just like I think it should be possible to give consent in advance. I'm just saying that given all the weird and kinky things people get up to, we shouldn't criminalize something that was maybe just a mistake or misunderstanding.

Last edited by dracoi; 09-23-2013 at 06:16 PM.
  #63  
Old 09-23-2013, 06:24 PM
Jimmy Chitwood Jimmy Chitwood is offline
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Originally Posted by jtgain View Post
But let's think real world here. Should your wife or girlfriend get 10 years in jail (or whatever the appropriate punishment is for 1st degree rape) a felony conviction, and registering as a sex offender, for waking you up to a blowjob?
The target seems to be moving, but no, she shouldn't. Is she going to?
  #64  
Old 09-23-2013, 06:26 PM
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wonky wonky is offline
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Originally Posted by dracoi View Post
And just to be clear, I'm not condoning rape, spousal or otherwise. I think that consent should revokable in advance just like I think it should be possible to give consent in advance. I'm just saying that given all the weird and kinky things people get up to, we shouldn't criminalize something that was maybe just a mistake or misunderstanding.
If you are the person who got raped, I don't think you'd be thinking "Oh, this is just a misunderstanding and my feeling of violation is completely unjustifiable."

But that's what the implied consent contingent is actually arguing. Because rape accusations do not happen because the government decides you've been raped. They happen because YOU decide you've been raped.

Shifting consent around shifts the burden around. When it comes to sex, we don't tend to say that the person who feels violated should just live with it.
  #65  
Old 09-23-2013, 07:35 PM
Marley23 Marley23 is offline
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Originally Posted by jtgain View Post
But let's think real world here. Should your wife or girlfriend get 10 years in jail (or whatever the appropriate punishment is for 1st degree rape) a felony conviction, and registering as a sex offender, for waking you up to a blowjob?
Whenever we discuss sexual assault cases, people forget there are steps between the act and the person being convicted and treated as a pariah. I find it difficult to imagine this resulting in a successful prosecution.

And the more I think about the surgery example the more ridiculous it is. In surgery, you're told in advance exactly what's going to happen, when, and why, and you consent to everything in detail. There's a finite duration to all of that. Most people don't consent to sex that way.
  #66  
Old 09-23-2013, 09:58 PM
Reyemile Reyemile is offline
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Originally Posted by Marley23 View Post
Whenever we discuss sexual assault cases, people forget there are steps between the act and the person being convicted and treated as a pariah. I find it difficult to imagine this resulting in a successful prosecution.
Yes, but if it's so absurd that it's "hard to imagine" successfully prosecuting something that appears illegal under the plain reading of current case law, that suggests current case law is flawed, no?

The last thing we want is for rape to be an "I know it when I see it" type of crime.

Last edited by Reyemile; 09-23-2013 at 09:59 PM.
  #67  
Old 09-23-2013, 10:09 PM
UltraVires UltraVires is offline
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Originally Posted by Marley23 View Post
Whenever we discuss sexual assault cases, people forget there are steps between the act and the person being convicted and treated as a pariah. I find it difficult to imagine this resulting in a successful prosecution.

And the more I think about the surgery example the more ridiculous it is. In surgery, you're told in advance exactly what's going to happen, when, and why, and you consent to everything in detail. There's a finite duration to all of that. Most people don't consent to sex that way.
So you think it should be a serious felony, just not prosecuted or reported? If it is so bad, why shouldn't I turn my girlfriend in to the cops since she has committed such a heinous crime? I'm not trying to be snarky, but how can you say that is rape on one hand, but on the other, it won't be prosecuted so no worries?

Not all surgeries. Today was just like any other day. What if it was unfortunate and I was in a serious auto accident, unconscious, and needed surgery to relieve swelling on the brain? I didn't consent to that. But the law looks at the totality of the circumstances and takes a good guess that I would consent if given the opportunity. So no battery charge against the surgeon.

Likewise, society should see that generally someone in a long term relationship wouldn't object to being woken up to sex..
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