# Consent to sex while unconscious **URL:** \ **Category:** Great Debates\ **Created:** [May 28, 2011, 4:30pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576 "2011-05-28T16:30:16Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![NAF1138](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/naf1138/32/3245_2.png) [@NAF1138](https://boards.straightdope.com/u/NAF1138)\ **Post date:** [May 29, 2011, 12:02pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/101 "2011-05-29T12:02:30Z")
> [@Diogenes\_the\_Cynic](#): > > That assumes an ability to _deny_ consent. And that’s what this whole thread is debating. We know what the law is, some of us are saying that it is an unjust law. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [May 29, 2011, 12:10pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/102 "2011-05-29T12:10:38Z")
> [@villa](#): > > But that isn’t the legal case with sex. I’d support a move to an affirmative consent standard in sex generally. But we aren’t there yet. For some reason people push back at treating sex like boxing or surgery - until it comes to a situation where they see certain benefits. So pick one or the other. Why must it be one or the other? Couldn’t affirmative consent be considered clear evidence of an absence of non-consent? Couldn’t we make it an either-or thing–that if someone has given affirmative advance consent for a sex act that would occur when they would be unable to withdraw consent (e.g., when they were asleep), that would be sufficient to override their inability to withdraw consent during the act itself? ---
**Author:** ![Farmer\_Jane](https://avatars.discourse-cdn.com/v4/letter/f/bbe5ce/32.png) [@Farmer\_Jane](https://boards.straightdope.com/u/Farmer_Jane)\ **Post date:** [May 29, 2011, 12:17pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/103 "2011-05-29T12:17:36Z")
But then you would have an issue of the circumstances in which the consent was made Was the person of sound mind, sober, not coerced, etc? I mean, let’s face it, if you’re having sex with your wife and she asks if you will take her to the ballet, did you really just give consent of your own free will? Somehow I find fault with, “Yeah, choke me and fuck me unconscious oh yeah big daddy right THERE!” to be the voice of a rational woman. ---
**Author:** ![Farmer\_Jane](https://avatars.discourse-cdn.com/v4/letter/f/bbe5ce/32.png) [@Farmer\_Jane](https://boards.straightdope.com/u/Farmer_Jane)\ **Post date:** [May 29, 2011, 12:29pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/104 "2011-05-29T12:29:23Z")
Here’s the problem with saying two adults can buck the law in the privacy of their own home: When rape occurs, a guy can say, “She told me before she was unconscious that she wanted it.” or, “She’s my wife and we’ve had sex before” in response to accusations of spousal rape. Same applies for any other crime. I can’t kill someone because they ask me to. ---
**Author:** ![NAF1138](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/naf1138/32/3245_2.png) [@NAF1138](https://boards.straightdope.com/u/NAF1138)\ **Post date:** [May 29, 2011, 12:40pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/105 "2011-05-29T12:40:29Z")
> [@CitizenPained](#): > > Here’s the problem with saying two adults can buck the law in the privacy of their own home: > > When rape occurs, a guy can say, “She told me before she was unconscious that she wanted it.” > or, “She’s my wife and we’ve had sex before” in response to accusations of spousal rape. > > Same applies for any other crime. I can’t kill someone because they ask me to. Right, I totally follow that. My feeling is that the law, as it is right now, is potentially leading to terrible miscarriages of justice. If you want to say that someone who enjoys being chocked out and fucked is mentally unsound that’s another issue and I don’t want to get into it. But how about this, let’s move the state of unconsciousness to one of inebriation. A married couple goes to a party, let’s call it their anniversary party, and it is at a hotel where the couple have a room upstairs. After the party they plan to have lots of sex. In fact the wife specifically plans to get drunk because she likes to have drunk sex. They are open with their sexuality so they tell everyone at the party that they are leaving to go have wild monkey sex as soon as the wife is drunk enough. When they arrive they are both sober and they tell everyone they meet that this is the plan. When they leave the husband (who doesn’t drink) is still sober, and the wife (who does) is fairly drunk. Drunk past the point of legal consent. They leave the party telling everyone that they are going back to their room to have hot wild monkey sex in celebration of their 10th wedding anniversary. Ten years married and still hot to jump each others bones. Later they come back to the party the wife clearly still drunk and talk about the wild sex they just had. Do the party goers have the husband arrested for rape? Under the law, as I understand it, they should. It isn’t any different the the choking scenario. I am saying that is wrong since the plan was to get drunk and fuck. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 29, 2011, 12:41pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/106 "2011-05-29T12:41:26Z")
> [@CitizenPained](#): > > Somehow I find fault with, “Yeah, choke me and fuck me unconscious oh yeah big daddy right THERE!” to be the voice of a rational woman. [Erotic asphyxiation](http://en.wikipedia.org/wiki/Erotic_asphyxiation) has been around for a long time. It is considered a disorder by psychologists but the practice is not unheard of. Personally I don’t get it but then there are a lot of sexual kinks I don’t get and it is not for me to decide which are ok and which aren’t. In this case I’d say the danger posed by the practice trumps “it is not for me to decide” but I suppose that could be argued. ---
**Author:** ![Farmer\_Jane](https://avatars.discourse-cdn.com/v4/letter/f/bbe5ce/32.png) [@Farmer\_Jane](https://boards.straightdope.com/u/Farmer_Jane)\ **Post date:** [May 29, 2011, 12:48pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/107 "2011-05-29T12:48:35Z")
> [@NAF1138](#): > > Right, I totally follow that. My feeling is that the law, as it is right now, is potentially leading to terrible miscarriages of justice. > > If you want to say that someone who enjoys being chocked out and fucked is mentally unsound that’s another issue and I don’t want to get into it. But how about this, let’s move the state of unconsciousness to one of inebriation. > > A married couple goes to a party, let’s call it their anniversary party, and it is at a hotel where the couple have a room upstairs. After the party they plan to have lots of sex. In fact the wife specifically plans to get drunk because she likes to have drunk sex. They are open with their sexuality so they tell everyone at the party that they are leaving to go have wild monkey sex as soon as the wife is drunk enough. When they arrive they are both sober and they tell everyone they meet that this is the plan. When they leave the husband (who doesn’t drink) is still sober, and the wife (who does) is fairly drunk. Drunk past the point of legal consent. They leave the party telling everyone that they are going back to their room to have hot wild monkey sex in celebration of their 10th wedding anniversary. Ten years married and still hot to jump each others bones. > > Later they come back to the party the wife clearly still drunk and talk about the wild sex they just had. > > Do the party goers have the husband arrested for rape? Under the law, as I understand it, they should. It isn’t any different the the choking scenario. I am saying that is wrong since the plan was to get drunk and fuck. It is technically in many states. Including mine. Difference is that sex is not illegal but a violent act that results in unconsciousness is. > [@Whack-a-Mole](#): > > [Erotic asphyxiation](http://en.wikipedia.org/wiki/Erotic_asphyxiation) has been around for a long time. It is considered a disorder by psychologists but the practice is not unheard of. > > Personally I don’t get it but then there are a lot of sexual kinks I don’t get and it is not for me to decide which are ok and which aren’t. In this case I’d say the danger posed by the practice trumps “it is not for me to decide” but I suppose that could be argued. When it comes to death and long term neurological damage, I vote your opinion counts! ---
**Author:** ![Farmer\_Jane](https://avatars.discourse-cdn.com/v4/letter/f/bbe5ce/32.png) [@Farmer\_Jane](https://boards.straightdope.com/u/Farmer_Jane)\ **Post date:** [May 29, 2011, 12:54pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/108 "2011-05-29T12:54:10Z")
Wait. I need to clarify: You cannot be drunk and legally give consent. However, if you and your mate are drinking and have sex and you don’t care the next morning, it wasn’t rape. The idea is that you should never assume consent and that being drunk does not allow you to enter into a contract. HOWEVER, this is meant to protect women in date rape cases…you’re interpreting it wrong Still, this situation is where a man harmed a woman physically. ---
**Author:** ![NAF1138](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/naf1138/32/3245_2.png) [@NAF1138](https://boards.straightdope.com/u/NAF1138)\ **Post date:** [May 29, 2011, 1:19pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/109 "2011-05-29T13:19:50Z")
> [@CitizenPained](#): > > Wait. I need to clarify: You cannot be drunk and legally give consent. However, if you and your mate are drinking and have sex and you don’t care the next morning, it wasn’t rape. The idea is that you should never assume consent and that being drunk does not allow you to enter into a contract. HOWEVER, this is meant to protect women in date rape cases…you’re interpreting it wrong Ok, good to know. That being said. Shouldn’t a married couple be able to give each other prior consent to have unconscious sexual congress just like they could give each other prior consent to drunken sex? > [@](#): > > Still, this situation is where a man harmed a woman physically. The choking was considered legal. That isn’t the subject of the debate. ---
**Author:** ![blindboyard](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/blindboyard/32/2833_2.png) [@blindboyard](https://boards.straightdope.com/u/blindboyard)\ **Post date:** [May 29, 2011, 1:26pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/110 "2011-05-29T13:26:47Z")
> [@CitizenPained](#): > > Wait. I need to clarify: You cannot be drunk and legally give consent. However, if you and your mate are drinking and have sex and you don’t care the next morning, it wasn’t rape. The idea is that you should never assume consent and that being drunk does not allow you to enter into a contract. HOWEVER, this is meant to protect women in date rape cases…you’re interpreting it wrong It’s not a just law if it isn’t the act which is criminal. If you can do something without knowing at the time if it will be deemed later to be criminal then that’s not a just law. Either having sex with a drunk woman who seems to consent is legal or it isn’t, it shouldn’t be left to someone else’s whim. > [@](#): > > Still, this situation is where a man harmed a woman physically. Nah, he just choked her unconscious. No harm, no foul. ---
**Author:** ![Farmer\_Jane](https://avatars.discourse-cdn.com/v4/letter/f/bbe5ce/32.png) [@Farmer\_Jane](https://boards.straightdope.com/u/Farmer_Jane)\ **Post date:** [May 29, 2011, 1:43pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/111 "2011-05-29T13:43:18Z")
Having sex with a woman without her consent is illegal. Period. A drunk woman giving or implying consent is not sufficient for your counterclaim. That’s what the law says. The law does not say that having sex with a drunk woman is illegal. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [May 29, 2011, 1:51pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/112 "2011-05-29T13:51:54Z")
> [@CitizenPained](#): > > Having sex with a woman without her consent is illegal. Period. A drunk woman giving or implying consent is not sufficient for your counterclaim. That’s what the law says. No, it’s not what the law says, period. You’re factually incorrect, or else you’re phrasing your posts so confusingly that it’s impossible to tell whether you’re incorrect. First, “without consent” is not the standard, as **Jimmy** et al have repeatedly pointed out. Second, being drunk doesn’t remove the ability to withdraw consent until you’re talking passing-out-drunk. Third, the gender of the victim is immaterial. ---
**Author:** ![Farmer\_Jane](https://avatars.discourse-cdn.com/v4/letter/f/bbe5ce/32.png) [@Farmer\_Jane](https://boards.straightdope.com/u/Farmer_Jane)\ **Post date:** [May 29, 2011, 1:59pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/113 "2011-05-29T13:59:44Z")
One, I said in my state, two I said woman/wife in response to the other poster. I think they - and many- are interpreting the Canadian law wrong. I could be incorrect on that, but concerning Colorado law I am not. You are free to dig up a side by side comparison of all 50 states, Canada, and the UK if you like. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [May 29, 2011, 2:24pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/114 "2011-05-29T14:24:35Z")
> [@Diogenes\_the\_Cynic](#): > > **Whynot** didn’t say she wants to be choked unconscious, dipshit. > > You’re a fucking moron, dude. Choking a person into unconsciousness is not a sexual act. If you think it is, then you’re a sick fuck I want no association with. You’re way out of line here. This is Great Debates, not the Pit, and you should know better. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [May 29, 2011, 2:33pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/115 "2011-05-29T14:33:39Z")
> [@Marley23](#): > > You’re way out of line here. This is Great Debates, not the Pit, and you should know better. I know. See post #94. There are two threads going on this subject, and I thought I was in the Pit thread. My apologies. It was an accident. ---
**Author:** ![Wesley\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wesley_clark/32/20581_2.png) [@Wesley\_Clark](https://boards.straightdope.com/u/Wesley_Clark)\ **Post date:** [May 29, 2011, 3:05pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/116 "2011-05-29T15:05:54Z")
nm ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [May 29, 2011, 10:07pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/117 "2011-05-29T22:07:15Z")
> [@Steophan](#): > > I’m in the UK, so my knowledge is much greater about the law here, but in most places BDSM practices are legal as long as they are consensual, and the intent is not to harm (in the sense of permanent physical damage). > > My understanding of the choking in this case is that unconsciousness was not the aim, sexual pleasure was, and that the unconsciousness was and accepted but unintended consequence. You are wrong on the law in the UK to the best of my knowledge. The practices are extremely rarely prosecuted, but could be. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [May 30, 2011, 3:13pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/118 "2011-05-30T15:13:33Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Why must it be one or the other? Couldn’t affirmative consent be considered clear evidence of an absence of non-consent? Couldn’t we make it an either-or thing–that if someone has given affirmative advance consent for a sex act that would occur when they would be unable to withdraw consent (e.g., when they were asleep), that would be sufficient to override their inability to withdraw consent during the act itself? You could. I just don’t see why. Given that affirmative consent is the general standard throughout law, it would seem rather odd to continue with absence of non-consent except in certain areas where we will normalize things and go with affirmative consent. ---
**Author:** ![Steophan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steophan/32/9595_2.png) [@Steophan](https://boards.straightdope.com/u/Steophan)\ **Post date:** [May 30, 2011, 3:59pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/119 "2011-05-30T15:59:22Z")
> [@villa](#): > > You are wrong on the law in the UK to the best of my knowledge. The practices are extremely rarely prosecuted, but could be. A very brief check suggests that the current standard is that one cannot consent to “injuries of a lasting nature”. I would suggest that most BDSM practices don’t cause such injuries. [Wiki cite,](http://en.wikipedia.org/wiki/BDSM#United_Kingdom) which suggests there is a great deal of ambiguity over what “lasting injuries” are, although the standard is clearly not permanent harm, as I suggested earlier. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [May 30, 2011, 4:14pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/120 "2011-05-30T16:14:46Z")
> [@Steophan](#): > > A very brief check suggests that the current standard is that one cannot consent to “injuries of a lasting nature”. I would suggest that most BDSM practices don’t cause such injuries. Actually your wiki cite shows that this is a misrepresentation… > [@](#): > > Accordingly consensual activities in the UK may not constitute “assault occasioning actual or grievous bodily harm” in law. The Spanner Trust states that this is defined as activities which have caused injury “of a lasting nature” but that only a slight duration or injury might be considered “lasting” in law. Ignoring the last clause there, as you have, completely changes the meaning. [Previous page](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576.md?page=5) [Next page](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576.md?page=7)