Actually I can make the cashed out version a little easier to read:
A person commits sexual assault if (but not only if) the person penetrate[s], however slight[ly], the … mouth, of another by any part of the body … with an intent to … gratify the sexual desire of any person, without consent.
(The defintion of bodily harm states the term “include[s] any nonconsensual sexual act”, and “sexual act” is what the rest of the above is describing, per the linked statute.
So it comes down, with the kissing incident, not to a question of whether kissing can be a sexual act (it can) but whether he had consent. She had just angrily stated “you guys are all the same”. That he could think he had consent to kiss her at that point is… implausible.
Yes, I’ve included it because it’s part of the definition of “bodily harm.”
You saw in my post, right, that I don’t agree he had consent. It seems exceedingly implausible to think that he thought he had consent to kiss her after she said “you guys are all the fucking same”, especially when that came after more than one case of her indicating a desire to stop or slow down? Implausible to think he thought he had consent, not to speak of implausible to think he had consent.
And I just want to follow up on your picking apart comment. You said you don’t have to, but I really want to know. Are you actually saying that someone who does this:
has not necessarily committed the crime of sexual assault?
No, I’m saying he had consent. ‘You guys are all the same’ is nowhere near withdrawal of consent, it’s a pretty fucking common line, usually preceding more sexual contact.
I’ve even heard an anecdote of a guy buying an item at a store, asked by the clerk if he wanted something else he said “No, I’m only interested in one thing”. A woman behind him in line said “You guys are all the same”. The line is so fucking common that it’s used as a joke.
The problem is that he had given consent that most folks would recognize as consent for earlier sexual acts. If the definition requires constant explicit consent, it becomes ridiculous, so that must not be it; it must be possible to coast on consent for awhile, until consent is withdrawn.
So, how is consent withdrawn? The clearest way to withdraw it would be threefold:
A person clearly withdraws it: “Stop!”
A person becomes incapable of withdrawing it: they fall asleep.
A person becomes reasonably frightened that withdrawing it will result in harm to them: the assailant threatens them if they withdraw consent.
She didn’t withdraw consent through any of these means. Your claim is that “You guys are all the same!” withdraws consent–but it doesn’t. She’d been kissing him earlier, and now he was trying something more. Maybe in the moment he thought returning to the kissing, which she’d earlier been enthusiastic about, was fine. That’d be clueless, but not assault.
So: do you agree with me on how consent is withdrawn? If not, why not?
SEX-9000 Planetary Defense System and Sexual Contact Simulator: “But express consent is required for all touching acts of a sexual nature.”
Captain Koch: “But how can she verbally consent to my rubbing her nipples if my penis is in her mouth?”
SEX-9000: “Does not compute! Sex is not…logical! Internal conflict! Cannot compensate! System Failure Imminent!”
[SEX-9000 interface panel explodes in a shower of sparks and grey smoke]
Captain Koch: “This is just getting too easy. Schtuck, we need to find a better class of malfunctioning supercomputer or celestial intelligence to battle.”
Science Officer Schtuck: “There is an sentient plasma cloud formation in the Sucutoo Nebula at 121 mark 12 which looks like sea otters fucking. We could power up the deflector shield and ram the ship up its alimentary tract.”
Captain Koch: “Lay in a course, Speed Factor 9, and inform Engineering that I want the Rabbit humming like clockwork by the time we arrive.”
Science Officer Schtuck: “Aye, Captain. Course laid on.”
The default, especially between relative strangers, should be that when one person says “not that, not right now,” the other should immediately ask whether other things they had been doing are still okay.
In the absence of that, it is unclear whether consent exists for those other acts, at best.
Consent being a state of mind, the real question at issue isn’t did she have her consent, but did he reasonably believe she was consenting.
Once a relative stranger indicates a negative sign towards a sex activity, the other should immediately give questioning signs about whether it’s okay to continue at all. (I use “signs” here to not be misunderstood as though I’m talking only about words.)
I feel like this generally applies by default, even among those more familiar with each other but of course over time trust develops etc etc.
If a constant yes/no not that/yes/no not that leads to something that reasonably could be called mixed signals, the rule that “mixed means no” should apply by default, especailly between relative strangers.
And I’m very perplexed that anyone who cares about consent would think otherwise, either third-personally about hypothetical or distant scenarios, or personally about encounters they personally could presently be in.
It is reasonable to assume that, once a partner has registered not being happy with doing a particular sex act you’ve just done, the partner may well feel a violation that should lead to the cessation of activities. There should be a check-in on this. If you did not check in, and they did in fact feel that kind of violation, you are the more important problem, and criticism should focus on what you should have done differently.
(And contrariwise, it is not reasonable to assume that, once a partner has registered not being happy with doing a particular sex act you’ve just done, the partner very well probably did not feel such a violation, such that no check-in is necessary in order to be sure.)
All things being equal, among relative strangers, etc.
You’re using the word “should” a lot. We’ve been talking in these last exchanges about the definition of sexual assault and the withdrawal of consent. What does “should” mean, above?
This is what the law requires in order to avoid committing sexual assault. This would keep the conversation most intact, but seems highly questionable.
You should do this because this is what the widespread cultural norm is. I disagree.
You should do this because it’s ethical. I agree strongly.
Something else, which I have no idea what that’d be.
Which is why I think Ansari is legally in the clear, but is ethically not. He did not communicate well. However, I don’t think this is ethically obvious to everyone, and I think the best solution is to combine this advice with advice to everyone to clarify communication around sex, and I absolutely don’t think that the right response is public shaming.
Yes, Obviously if her consent was unquestionably given it doesn’t matter what he believed. But she implies that she didn’t consent in her conclusions.
I don’t recall that she thought she was being assaulted during the course of events. Did I miss something? That’s important. There’s no reason to think that her state of mind at the time didn’t include consent. There’s no mention of that until the date is over. There’s plenty of mention of things she didn’t like, but no mention of things she was being forced to do against her will.
More craziness. Two people, one can say no, the other can ask. The result should be the same either way. Why should one of them have more obligation than the other? In the context of this issue you are saying the woman doesn’t have to say no but the man has to ask. Is that because women aren’t equal to men in some way?
You stop doing what someone says no to. That’s the only obligation. After that you use your own judgement.
And you say no when you want someone to stop doing something.
Before I answer I need to clarify: You mean “say no” in a broad sense, correct? In other words, you don’t mean to imply here that in order to register withdrawal of consent in a way that obligates the other person to stop, a person must actually say the word “no”, correct?
The legal question is made difficult by the fact that it ultimately falls to a “reasonable person” standard as to what constitutes reasonably thinking a person has given consent or not.
Hence my shift to “should” talk, because reasonableness is a normative notion.
But I am also trying to return to the wider more important conversation about what we should generally consider as normative in these kinds of situations.
Does that help?
Right or wrong, I was wondering, would you agree there’s a substantive distiction to be made between public shaming of a person because they are unethical and public shaming of a person on a basis that they are supposedly sexually ridiculous, laughable, etc? I would call the latter revenge porn, I would not call the former revenge porn, and I would characterize this incident as attempting to do the former, not attempting to do the latter.
Well, no. It doesn’t. Are you meaning “should” is synonymous with “it’s reasonable to”? And do you suggest that any reasonable person would reach the same conclusion? Do you mean to say that it’s unreasonable to reach another conclusion, not upon reflection, but in the moment?
I think the distinction is not significant. If you’re shaming someone as a side-effect of reporting a crime, that’s one thing. If you’re shaming someone because you’re angry at them and want them to suffer, that’s revenge shaming; and if you’re doing it by exposing intimate/sexual stuff that they thought was confidential, that’s what revenge porn is. Plenty of revenge porn isn’t designed to make someone ridiculous or laughable or anything like that. And again, revenge porn doesn’t carve out an exception for thinking the person you’re committing the crime against treated you badly.
That’s right. They must give an indication that a reasonable person would interpret as ‘no’, unambiguously enough that a different reasonable person would not interpret it as ‘yes’.
Yes. If you care about consent (and it’s not reasonable not to) you should take efforts, when a person indicates they’re not comfortable with what’s happening, to make sure they’re comfortable with continuing at all.
I am not sure how to ask for examples here in a way that doesn’t break a rule but… closing my eyes and hoping for magic: cite?
On reflection, I can imagine cases where someone out of anger releases footage, not to ridicule the victim of revenge porn, but to actively show off their attractiveness without their consent.
I guess I have to say that ethically (not legally–and I don’t think anyone here is arguing its revenge porn legally are they?), I do think an exception is carved out for if your intention in issuing the revenge porn is to exhibit how unethical about consent they are.
Sorry that this is so difficult for you. I will spell it out explicitly.
It is not a matter of implied consent; it is consent explicitly given. If one has “explicitly” consented to “heavy petting” inclusive of mutual oral sex, then itemizing each variation of that activity and getting individual consents for each element of it is not required or expected. Penis on buttock, vulva on thigh, placed gently or “thrust” are activities that a reasonable person would assume may be part that activity. Inserting a penis into an orifice other than mouth would not be reasonably considered a part of that activity and would require some explicit communication (inclusive of by conduct) of consent. Kissing passionately would be considered part of that activity as well. Of course an individual can specify that certain elements are not allowed, e.g. “no kissing”, but those would be considered special cases that would need specific communication regarding.