The courts. In both Canada and every US jurisdiction I know.
You seem to be flipping back and forth. On the one hand you are announcing what the elements of the crime of rape are, and yet on the other you claim to be talking not about what is, but what you think should be. Decide one or the other, and it becomes possible to discuss it.
My eyes glaze over because of the arguments with and by Dio.
I want clarification on a couple of points:
For me, two is the sticking point where it becomes assault. To go back to the surgery or dentistry examples from earlier:
You go to a doctor for a boob job. You sign the paperwork for the boob job, get put under and the surgeon does your boob job. However, whilst there he notices that your labia are a bit flappy. So he tightens them up. After all, you’d consented to him performing surgery on you whilst you were unconscious.
You go to the dentist for a single tooth extraction. Again, you give consent advising you wish this tooth to be removed. You are put under and the tooth is taken out. However the dentist thinks your teeth are untidy (but still dentally sound) and files/adjusts them to try and align them better, leaving you with trauma in your mouth that is potentially more painful than you were anticipating.
I don’t agree with Dio’s assertation that any sexual contact whilst unconscious is automatically assault, even if the unconscious party had agreed beforehand. But if she didn’t give explicit consent for him to stick a dildo up her ass, then to me, that’s assault. She may have consented to being choked and even to having vaginal sex in that state, but if she didn’t agree before hand that other sexual contact could take place - to me that’s still assault.
Are you saying this is where it becomes assault, or where you think it should become assault. If it is the latter, I may well agree with you. If it is the former, well, that isn’t really true.
The trouble with using a surgery or dentistry example is that the law is simply different when it comes to sex than it is for these things. Now again, we can discuss whether it should be the case that we make consent law rational and in common across law - but people seem to be incredibly resistant to the idea of affirmative consent throughout the law to do with sex. What doesn’t make sense to me is to keep the current absence of non-consent standard, but write in an exception so people can butt fuck unconscious people. That just makes the law even more irrational.
Guess what?
If I pulled your teeth while you were conscious without your consent, it would be assault too. Even if you didn’t give me an expression of non-consent. Because the law to do with dentistry is different to the law to do with sex.
I agree that you have the right to say that you want something and to receive what you want. Besides, there’s nothing violent or harmful about what you described. It’s actually pretty awesome to have a relationship of such trust, and one that continues to earn your trust.
But if, hypothetically, your guy broke that trust and did something you hate while you were asleep, it’s good to know you have the law on your side to protect you. The important thing is that you are in the driver’s seat.
True, but - and I think this is getting lost in the argument about the specific incident that spurred the close look at the law (which really belongs in the Pit thread about the actual incident, not here) - according to that law, even with my prior consent, ANYTHING sexual he does* that I’ve given prior consent to*, from a kiss to actual intercourse, is rape. That’s the part I think is wrong and stupid.
Yes, if he didn’t have her consent to put a dildo in her rectum, then that was assault. Truth is, we just don’t know if she gave consent to that part. We know she consented to the erotic asphyxiation. We know that when she wanted to hurt him during their custody battle, she said [something - the asphyxiation? The dildo? It’s unclear] was against her will. We know she later said [it] wasn’t against her will and she confessed she lied about it. Even when she said [it] wasn’t against her will, the law still said it was rape.
What the law says, and the court pointed this out, is that even a kiss to an unconscious person who gave permission for it prior to unconsciousness is rape. That’s not protection, that’s…overreach. That’s saying I don’t “have the right to say that [I ] want something and to receive what [I ] want.”
Nitpick - it discusses sexual assault in this situation, not rape.
Okay. Nitpick accepted. Mentally edit my post accordingly. 
Further nitpick - in the Criminal Code there is no crime called rape. There is just sexual assault in varying degrees and with various aggravating factors.
Indeed - which is why using the term rape to describe what would hypothetically be charged in a kissing situation is unnecessarily inflammatory.
How is that safe, though? What about brain damage and all that? You often hear about children playing “the choking game” which is generally not considered a good idea. Is it because it’s a sex thing that we’re more accepting of it?
How is what safe? Erotic asphyxiation? It’s not, at all, unless you’ve got a trained medical professional with intubation kit in the next room. It doesn’t take a lot of force to break the hyoid bone and collapse the trachea.
I’m not at all into that*. I’m into sleep sex, not asphyxiation.
*Although if I were, it’d be safer for me than most - my SO *is *a paramedic with an intubation kit in the next room! 
Sorry, misread–I thought you were into choking…
How has the law protected you ?
To my mind it merely gave you the right to exact retribution or justice depending on your point of view.
There are a lot of different ways that erotic asphyxia, colloquially often known as breathplay, can be achieved, though. Throttling someone is just one means of cutting off air and it is very dangerous and not recommended. The euphoria sensation can be reached through other methods, and in a dominance/submission paradigm, it can be as simple as a order to the submissive partner to hold their breath. Those other methods barely carry a risk of blacking out, let alone a risk of death. (Unless you know of someone capable of holding their own breath until they die. I’ve seen it tried, usually by young children, but the body’s natural instinct to breathe always wins out.)
I wouldn’t be so sure about that. There’s no particular standard in law (objective standard, that is, like BAC as used in DUI offenses) that I’m aware of as to how intoxicated is too intoxicated. There’s certainly a level of drunkenness before the level of passing out where one is no longer competent; I’m unsure how anyone can suggest that someone can be too drunk to drive, too drunk to safely/legally perform work functions, too drunk to sign a binding legal contract, but still competent to consent to sex.
No you’re not. Assault requires an overt act and intent to cause bodily harm. A surgeon’s intent is not to cause you bodily harm, and in fact, the intent is just the opposite. That you have an injury and pain incidental to having surgery isn’t enough to make it assault any more than it’s assault if someone steps on your toe in the process of giving you a hug, or your stylist accidentally burns you while using a heated iron on your hair.
I’m not sure about that, either. At least, we’re taught as nurses that a threat is assault, and a touch against the person’s will is battery. If you are a patient and you tell me you don’t want an IV (assuming you’re mentally competent), if I tell you, “I am putting in this IV whether you like it or not.” I’ve assaulted you. If I gently touch your arm to feel for a vein to place the IV, I’ve committed battery. My intent is certainly not to cause harm - in fact it’s the exact opposite - but the crime has been committed.
Are the laws on assault and battery different in a non medical setting?
Different from sexual assault, yes, as discussed earlier in the thread. And assault now includes what used to be called battery in most places. But different from, like, punch you in the head assault, no. Damuri was right. Surgery is regular old assault which the patient gives informed consent to in advance, and which the law provides a defense to in the event that a patient later says “Arrest that woman - she cut my fucking chest open!”
A surgeon is definitely doing bodily harm to the person being operated on, so that isn’t what prevents it from being a crime. What prevents it from being a crime is the surgeon having a bunch of big long forms that the patient has signed, in conjunction with a statute that says something like:
(That’s the New York code, § 35.10.)
As mentioned a bunch of times by now, though, sexual assault law doesn’t work like this, so it’s not a useful comparison, so Damuri’s bringing it up doesn’t advance the discussion going all the way back to mangetout’s question. Prior consent is OK when it comes to surgery because no surgery is ever* OK without a person’s affirmative consent. Affirmative consent is what the law is designed to look for in order to say that it wasn’t assault when this person cut this person open. If we want consent to sex given before loss of consciousness to work the same way as consent to surgery given before loss of consciousness, we have to make consent to sex work the same as consent to surgery, which is to say, we have to make the law look for affirmative consent when it comes to sex.
Think about the same analogy in the other direction - guy sues a lady for taking out his spleen, and her defense is that he was making surgery eyes at her all night, and willingly came back to her apartment and passed out on her gurney. He didn’t say he wanted an operation, but he made it pretty clear, if you know what I mean. Then he woke up and had second thoughts. We recognize that that is ridiculous in that context, and that would clearly be no defense. But we allow that same kind of fluidity in terms of the consensual sex dynamic because we think that’s an entirely different situation, and by recognizing that difference we created the situation before the court in Canada. It makes perfect sense that, in the same way that a person can agree beforehand to be anesthetized and then acted upon, a person can agree to be acted upon sexually while unconscious. But the law is blind to actual expressions of consent in the latter case, because we made it that way - we designed the law, instead of looking for affirmative consent, to look for indications of non-consent.
Just imagining what a mental pretzel it would take to have both “physical force” and “consent of the patient” co-occurring. Aren’t they pretty much mutually contradictory?
Physical force doesn’t mean compulsion. It’s to be taken more or less literally - any physical action that constitutes the treatment.