# 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:** 7
**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, 4:20pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/121 "2011-05-30T16:20:22Z")
It states that a slight duration or injury _might_ be considered lasting at law, which is why I said there was ambiguity. I don’t think enough cases have been to court to resolve this ambiguity yet, but I’m willing to be corrected. ---
**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, 4:25pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/122 "2011-05-30T16:25:54Z")
Right - so the legal standard is “no assault occasioning actual or grievous bodily harm.” If you want to maintain that this standard is differently interpreted in sexual matters than in non-sexual matters, then it is incumbent on you to demonstrate that this shift has happened. Until court decisions show it being interpreted in a fashion that differs, then the presumption is that it is the same. ---
**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, 4:39pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/123 "2011-05-30T16:39:54Z")
Looking again at Wiki, the standard for actual bodily harm appears to be hurt or injury that interferes with the health or comfort of an individual. _If_ it’s accepted that doing something that causes the recipient sexual pleasure is not an interference with comfort, most BDSM practices would not fall foul of this. The “if” may be the crux of this though. For it to be illegal, it would also have to count as an assault - this is why sports which lead to bodily harm don’t lead to prosecutions. It’s not immediately obvious why consensual sexual practices would count as assault, or as actual bodily harm, and as I said before I’ve not seen it unambiguosly stated by a court that it is. [Here’s](http://en.wikipedia.org/wiki/Assault_occasioning_actual_bodily_harm) the wiki page. If I’ve misunderstood anything, or simply missed something, I’d welcome clarifications. ---
**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, 4:41pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/124 "2011-05-30T16:41:59Z")
> [@Steophan](#): > > For it to be illegal, it would also have to count as an assault - this is why sports which lead to bodily harm don’t lead to prosecutions. It’s not immediately obvious why consensual sexual practices would count as assault, or as actual bodily harm, and as I said before I’ve not seen it unambiguosly stated by a court that it is. Because sports are specific exceptions to elements of assault law, while sex isn’t specifically exempted. ---
**Author:** ![Stoneburg](https://avatars.discourse-cdn.com/v4/letter/s/df705f/32.png) [@Stoneburg](https://boards.straightdope.com/u/Stoneburg)\ **Post date:** [June 1, 2011, 2:26pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/125 "2011-06-01T14:26:40Z")
> [@Diogenes\_the\_Cynic](#): > > Irrelevant. Once they are unconscious, they are no longer able to want anything. That’s going to make it hard for surgeons though, isn’t it? ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [June 1, 2011, 2:47pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/126 "2011-06-01T14:47:23Z")
Case of get the law out of the bedroom. What they have done in the past, the degree of opening themselves up to each other including acting out fantasies is between them, if the limits were exceeded or the degree of sexual openness withdrawn then there may be a issue. Yes the law may disagree but the law is frequently in the wrong. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [June 1, 2011, 3:24pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/127 "2011-06-01T15:24:52Z")
> [@blindboyard](#): > > The sex is while unconscious, the consent is from the period of consciousness before unconsciousness. > > [This case](http://www.theglobeandmail.com/news/national/no-consent-in-unconscious-sex-case-supreme-court-rules/article2037117/), from Canada. From the Supreme Court, no less. > > The man and the woman, according to the Supreme Court Judgement (available [here](http://scc.lexum.org/en/2011/2011scc28/2011scc28.html)) had sex and experimented with erotic asphixiation, which they had apparently done before. She had said that she knew she might go unconscious and didn’t mind, so she did and came around a few minutes later, they had sex. Two months later she “cries rape”, but later recants saying she lied about not consenting because she wanted to use the “rape” as a weapon in a custody case. She recanted, but he’s still going to jail because he admitted to humping her while she was unconscious. > > That’s from the minority report in the court, a 6-3 decision. The facts aren’t in dispute in this case, and the facts are that he’s now going to prison for having sex with a consenting woman. > > Now, I wouldn’t want to have sex with an unconscious woman, but he didn’t find an unconscious woman and rape her, he made her unconscious with her consent to both the unconsciousness and the sex and at her request (her request was for the throttling, knowing it may lead to unconsciousness). > > What we have is a false allegation of rape, and the man falsely accused going to prison despite the recantation of his accuser. > > How can that be just? When i sign my medical consent form for major surgery, I am consenting to assault that will occur while I am unconscious. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [June 1, 2011, 3:27pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/128 "2011-06-01T15:27:38Z")
> [@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. The problem is that murder is that consent does not make willfully killing someone legal, consent makes having sex with someone entirely legal. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 1, 2011, 3:42pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/129 "2011-06-01T15:42:04Z")
> [@Damuri\_Ajashi](#): > > The problem is that murder is that consent does not make willfully killing someone legal, consent makes having sex with someone entirely legal. Ah if only this were sufficient. Not all sexual acts can be consented to, and consent given in advance doesn’t legally count. ---
**Author:** ![robert\_columbia](https://avatars.discourse-cdn.com/v4/letter/r/e79b87/32.png) [@robert\_columbia](https://boards.straightdope.com/u/robert_columbia)\ **Post date:** [June 1, 2011, 3:44pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/130 "2011-06-01T15:44:00Z")
> [@villa](#): > > Rape law requires an absence of non-consent rather than affirmative consent. Given that such an expression of non-consent is impossible when unconscious, the law includes being unable to give non-consent as an expression of non-consent. > > Consent can also be revoked at any time - if a man is having consensual sex with a woman and she tells him in the middle to stop, continuing is rape. Once again, if the person is unconscious, the consent cannot be revoked. A person saying “you can do anything you want to me for the next year” does not have any legal standing as to consent. I am not an attorney, and definitely not yours. I’ve been thinking about consent to sex and how I was always taught as a young-un that consent to sex can ALWAYS be revoked at ANY TIME, regardless of how far you have already gone with someone. That is, agreeing to go on a date with someone, or letting them touch you in certain ways, does NOT, IN ANY WAY, oblige you to go all the way. I was thinking about why this might be in terms of law. Certainly, bare promises do not generally bind a person under the common law. But what if you signed a CONTRACT with CONSIDERATION, saying that you were giving up X in exchange for consent to sex, making the consent contractual and irrevocable (like you can’t withdraw your consent to pay a bill and the creditor can take you to court and make you pay). Well, that basically is the definition of prostitution, right? And contracts to perform illegal acts are not enforceable, so the consent can still be revoked! I also remember reading somewhere that when a couple have settled on sexual practices, each partner is entitled to assume that consent has remained the same. So if John and Mary have settled on sex every Friday night, and they do it without having to go back and forth and confirm consent every week (since it’s implied), and Mary decides that she wants John out of the picture and decides to trick him by not telling him that she no longer consents, by failing to resist or tell John the fact that she withdraws consent, and waiting for John to slip into bed and attempt to make love, John has a defense to rape. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 1, 2011, 3:54pm UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/131 "2011-06-01T15:54:41Z")
> [@robert\_columbia](#): > > I am not an attorney, and definitely not yours. I’ve been thinking about consent to sex and how I was always taught as a young-un that consent to sex can ALWAYS be revoked at ANY TIME, regardless of how far you have already gone with someone. That is, agreeing to go on a date with someone, or letting them touch you in certain ways, does NOT, IN ANY WAY, oblige you to go all the way. I was thinking about why this might be in terms of law. Certainly, bare promises do not generally bind a person under the common law. But what if you signed a CONTRACT with CONSIDERATION, saying that you were giving up X in exchange for consent to sex, making the consent contractual and irrevocable (like you can’t withdraw your consent to pay a bill and the creditor can take you to court and make you pay). Well, that basically is the definition of prostitution, right? And contracts to perform illegal acts are not enforceable, so the consent can still be revoked! Even if prostitution were legal in such a jurisdiction, you cannot contract to illegal acts. And sex without ongoing consent is illegal. > [@robert\_columbia](#): > > I also remember reading somewhere that when a couple have settled on sexual practices, each partner is entitled to assume that consent has remained the same. So if John and Mary have settled on sex every Friday night, and they do it without having to go back and forth and confirm consent every week (since it’s implied), and Mary decides that she wants John out of the picture and decides to trick him by not telling him that she no longer consents, by failing to resist or tell John the fact that she withdraws consent, and waiting for John to slip into bed and attempt to make love, John has a defense to rape. First problem is there is no resistance requirement in rape law - multiple cases have specifically removed it (though Pennsylvania may have backdoored it back in). The “implied consent” in that situation is meaningless. In every jurisdiction I know, in this situation John hasn’t got a need for a defense to rape, because he hasn’t committed rape, unless Mary specifically indicates non-consent. The only exception in the US I can think of is New Jersey, where the existence of the ongoing pattern would probably be considered consent in the absence of an expression of non-consent. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [June 2, 2011, 2:00am UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/132 "2011-06-02T02:00:20Z")
> [@Diogenes\_the\_Cynic](#): > > I didn’t see in the ruling that she gave any prior consent (before being choked out) to having a dildo rammed up her ass. I think the premise of this debate is that such consent was given. I haven’t heard ANYONE argue that this would have been OK without the prior consent. Perhaps you were working with a different set of assumptions than everyone else. Remember the pitting is because the court said he is a rapist regardless of whether prior consent was given or not. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [June 2, 2011, 2:02am UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/133 "2011-06-02T02:02:45Z")
> [@Diogenes\_the\_Cynic](#): > > Because it doesn’t meet any legal definition of assault. If I pulled your teeth while you were unconscious without your consent, it would probably be assault. > [@](#): > > Where is it shown that she gave consent to be ass-fucked with a dildo whilke unconscious? That is the premise underlying this entire debate. If no such consent was given then there really isn’t anything to argue about. If you prefer assuming away the argument then I guess that is your prerogative. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [June 2, 2011, 2:13am UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/134 "2011-06-02T02:13:16Z")
> [@villa](#): > > consent given in advance doesn’t legally count. Says who? I suppose in Canada, that is now the case but why should it be the case? ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [June 2, 2011, 2:17am UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/135 "2011-06-02T02:17:54Z")
> [@Steophan](#): > > **Dio** , do you actually read the posts you reply to? Or for that matter the OP of this thread? There is no issue with the choking. It’s not illegal, it shouldn’t be illegal, and it’s not what this guy has been done for. > > You are wrong about pretty much everything in your post. My body is _mine_, and if I want to cut my arm off, or kill myself, I have the perfect right to do so. Ermm. Not to take Dio’s side on his tangent but no you can’t do that without interference. There is good public policy behind not letting you be a danger to yourself. We put people who want to cut off their own arms in a padded cell so they can’t hurt themselves. The correct response to Dio’s analogy with cutting off f arms is that its not even a reasonably good analogy > [@](#): > > They are insulting to people who suffer from mental illness, and also to people who enjoy BDSM. Fortunately, there’s a pit thread about this subject now. Cutting off your own arms is not BDSM, its mental illness. ---
**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:** [June 2, 2011, 2:19am UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/136 "2011-06-02T02:19:23Z")
> [@Damuri\_Ajashi](#): > > I think the premise of this debate is that such consent was given. I haven’t heard ANYONE argue that this would have been OK without the prior consent. Perhaps you were working with a different set of assumptions than everyone else. > > Remember the pitting is because the court said he is a rapist regardless of whether prior consent was given or not. The court is correct, but as it happens there ALSO was no prior consent. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [June 2, 2011, 2:24am UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/137 "2011-06-02T02:24:43Z")
> [@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. One of the elements of rape is lack of consent. so it is not like someone asking you to murder them because if I stick a dildo up your ass with your consent then it is not rape. The question is whether prior consent can be given to have sex while unconscious. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [June 2, 2011, 2:29am UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/138 "2011-06-02T02:29:42Z")
> [@Diogenes\_the\_Cynic](#): > > The court is correct, but as it happens there ALSO was no prior consent. I don’t think the record is clear about whether or not there was prior consent but this debate becomes meaningless once we assume away consent because I have not heard ANYONE say that it would have been OK without the consent. You are effectively arguing against the hypothetical. Just assume that consent was given. ---
**Author:** ![Johanna](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johanna/32/8318_2.png) [@Johanna](https://boards.straightdope.com/u/Johanna)\ **Post date:** [June 2, 2011, 3:13am UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/139 "2011-06-02T03:13:51Z")
> [@WhyNot](#): > > I think it’s ridiculous. TMI time: one of my kinks involves being made love to while I sleep. Or at least, starting out that way. So I’ve given my SO clear instructions that if I’m sleeping and he’s in the mood, please do continue! 😃 Once I got my breasts grabbed and handled roughly in my sleep by someone I was married to at the time. Far from getting me in the mood, it was an uncomfortable and distressful way to have been awoken. It was a case of sexual assault. Needless to say that was the last time I ever slept with that individual, and then I proceeded to move out. In a long-time couple, the initiation of sex may come to take place without negotiation, following a well-established pattern of steps. Perhaps in my ex’s mind, grabbing my breasts while I was asleep was an acceptable variant on the old rules of initiating sex. Instead, it frightened and upset me. ---
**Author:** ![WhyNot](https://avatars.discourse-cdn.com/v4/letter/w/c77e96/32.png) [@WhyNot](https://boards.straightdope.com/u/WhyNot)\ **Post date:** [June 2, 2011, 3:48am UTC](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576/140 "2011-06-02T03:48:52Z")
> [@Johanna](#): > > Once I got my breasts grabbed and handled roughly in my sleep by someone I was married to at the time. Far from getting me in the mood, it was an uncomfortable and distressful way to have been awoken. It was a case of sexual assault. Needless to say that was the last time I ever slept with that individual, and then I proceeded to move out. In a long-time couple, the initiation of sex may come to take place without negotiation, following a well-established pattern of steps. Perhaps in my ex’s mind, grabbing my breasts while I was asleep was an acceptable variant on the old rules of initiating sex. Instead, it frightened and upset me. That sounds really horrible; I’m so sorry that happened to you. I get that it’s probably not a super common like, hence the “kink” label. Me, I like the dreams it gives me for those few moments before I wake up, and I wake up feeling sort of buzzy and aroused. But again, I’ve requested it specifically, and so my partner knows I like it. That really does make all the difference, or there’d be no thread here. 🙂 You didn’t give consent before you were unconscious; I have. So what he did to you was wrong and assault, when for me, with this partner, it’s lovemaking. [Previous page](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576.md?page=6) [Next page](https://boards.straightdope.com/t/consent-to-sex-while-unconscious/583576.md?page=8)