Incidentally, what was the TV show where this happened?
I’ve never seen so much as a commercial for this show, and yet somehow, I still know they’re talking about Supernatural. That kind of scares me.
Ahh. The show with the two Deans? Dean the character on Supernatural, that is, and Jared Padalecki who was Rory Gilmore’s Dean.
I vote “no” on sexual assault. Sam wasn’t “there” when the assault happened. This isn’t the same as being unconscious or drugged. In the world as presented by the show, the personality is a discrete component that can be removed and replaced in any given body. Since I feel, as a general rule, that the “self” does not reside in the body, but in the mind, if the mind isn’t there, that person isn’t there, either. Sam wasn’t sexually assaulted because Sam was nowhere near when the sex happened.
This isn’t to say that what the guy did was okay, of course. Arguably, it’s worse than sexual assault. But I don’t think it is, itself, sexual assault.
I’m inclined to agree with you, Miller. If we lived in a world where this could happen, maybe we could come up with a different category for it. And I’m sure we’d have people seeking help or support for it much the way we have support groups for it now. But I don’t know that the people who have experienced a traditional rape or sexual assault would necessarily be able to relate as readily to the people whose bodies have been used. I mean, they could, but it seems so specific as to require its own label.
Disagree. It isn’t a necessary element of the crime that the person’s mind be “there” during the assault for it to “count” as a crime. You can, for example, sexually assault the comatose, which is as close in the real world as you can get to this scenario, and there is no suggestion that this is not a crime, or that the crime is not one of sexual assault.
Yes, although now we just call the one Dean Dean. The other Dean is Sam. 
eta: BTW, although the show has magic and demons and other stuff, it ostensibly takes place in our own world. So even within the confines of the show, Sam wouldn’t have legal recourse. (Also, he’s legally dead, so he would have trouble filing a lawsuit. And if he was discovered to actually be alive, he’d be arrested for committing about eighty trillion counts of credit card fraud, among other things.)
I’d say the real violation was when the consciousnesses were switched and in a world where that was possible it would need to be illegal to do without consent.
Once the consciousnesses were switched I tend to think the sex was not rape of that person. If I found the arm of an amputee in the street and masturbated with it is that rape in the same way that it would be if I did the same with the still-attached hand of an unconscious person? To me, my gut reaction is no.
The woman he had sex with may have a case for rape depending on the jurisdiction. Several states have laws making sex via fraud a form of rape.
Here’s an interesting discussion of “rape by fraud” at The Volokh Conspiracy.
If a woman’s in an irreversable coma and a doctor rapes her, is it sexual assault? Yes.
If someone creeps into my apartment and steals jewelry, but I don’t notice it, is it a theft? Yup.
In short, my answer is yes, the described incident was sexual assault. Even if Sam never found out about it. The crime is in the perpetrator’s behavior, not the way the victim feels about it.
IMO, not assault. You *are *the totality of your mind and body, sure, but you are much more resident in your mind than body. If your mind gets switched, the body now inhabited by someone else is not meaningfully you any longer. It becomes a property issue, to me - you won’t flinch if “your” body is hit, for instance, but you’ll complain bitterly about the damage to “your” body. But punch at your “new” body and you will definitely flinch. This tells me that the mind/personality is aware of the difference.
Sorry, but I don’t think this logic holds up if the crime were, say, burglary. You could say that the damages in most instances of burglary are due to theft of cash, jewelry, drugs and personal electronics/media. Would you say that if a thief breaks into an impoverished or austere home, finds nothing of value to him and ends up stealing nothing, that this was not at least an attempted theft? (Or taking it a bit further, arguing that since there was no actual theft, the trespasser was in this instance not a burglar?) Both arguments sideline the agency and intent of the criminal.
I can also think of a few lesser possible damages to the man’s reputation, deriving from his body having had sex with a woman he probably wouldn’t have hooked up with in his right mind. (“Manslut” or damaged relationship, anyone?) Plus, there’s now a woman walking around who has that one-way intimate knowledge of him; should he ever encounter her again (socially or in a business context; either way, it could be awkward as hell), he’ll have a lot of explaining to do. Thirdly, let’s suppose that promiscuity per se isn’t an issue for this guy – but his reputation as a great lover (confident, imaginative, experienced, considerate of his partner’s needs, etc.) is. I imagine a pimply teenage boy’s presumably first, fumbling experience was no great reflection of his host body’s sexual history. God forbid the man should ever encounter the woman and her friends in a bar some night…
Except that in the hypothetical situation from the TV show, the parties are switched back. The man lost his body, but only for a few days. If you rent out a property for, say, a month, you’d have a grievance if your renter trashed the place or torched it. (That analogy is flawed because you entered into that agreement voluntarily and knowingly, and because you’d still own the property even as you rent it out, but still.)
I think we own and reside in both our minds and bodies (even when dead), and the law reflects that. You don’t lose all your rights over your person even when brain-dead, although the law may permit the cessation of life support; and even the dead are entitled to dignified handling of their corpse and its disposal in accordance with their provisions. The dead lose ownership of all their earthly possessions, but they still “own” their body.
But getting back to the OP’s scenario, I’d heavily weigh the considerations of agency and intent WRT characterizing the parties’ actions as sexual assault, etc. In the TV show example, one party orchestrates this situation and the other is his innocent dupe (and presumably has no idea of what went on; I don’t watch the show). I’d only stigmatize the actions of the magus figure in this case.
What if two people were switched against their will by, say, extraterrestrial aliens, with no indication as to how long the transference would last and no reason to believe it wouldn’t be permanent? I wouldn’t judge the switch-ees too harshly, even for failing to disclose their predicament to friends/family/lovers, because the penalties in society for claiming alien mind-body transfers can be quite harsh (as in involuntary psychiatric treatment). Even if the two switchees could quickly determine on their own who’d they’d been switched with (let’s say they even knew each other very well), they still have to find a way to cope with their situation in society as it is… even if that means just going with the flow for the time being, having sex with each other’s spouse, and so forth.
Hmm. I’m torn. If someone waved a magic wand and -poof!- I was suddenly had a different body, I’d probably see it as “my new body — me” as long as I was residing there. If I looked across the room and saw my former body housing some other dude’s consciousness, I wouldn’t think “Hey, that dude is me.” I’m pretty sure I’d think “me” was wherever I happened to be at the time, including if I was stuck in a robot body or something.
I might be upset if I saw the other dude smoking a cigarette and abusing my former body, but I don’t think I’d see it as “me”. So if the guy had sex using my former body, I don’t think I’d feel violated if I got my old body back, because it wasn’t “me” taking part in the sexual activity.
On the other hand, if the other dude used my body to have sex with my wife by misleading her, I’d have to kill him.
For a real world comparison, if a twin passes himself (or herself) off as their sibling in order to have sex with the twin’s significant other, I think that’s clearly sexual assault/lack of consent on the SO – which is what I thought this question would be about, the person he had sex with.
…and if the original guy ends up with an STD or a tattoo, he’d have a case. However, to use your analogy, if I’m renting a house, you don’t get to stop me throwing a party in it, or eating durrian fruit, or wandering around in the buff (noise ordinances, “no parties” lease clauses and property damage notwithstanding). Nor can you just come around and use the toilet uninvited. While I’m renting it, within the terms of lease, it’s mine to use. Now, the central issue here is that there’s no such agreement. That’s fine, but then that’s the moral crime.
I guess it comes down to whether a reasonable, law-abiding person would have thought that the body switch was permanent. If so, then while the body thief is still guilty of a monstrous crime (worthy of life in prison), “sexual assault” probably does not apply.
In this case, however, I think it was clearly sexual assault, because a reasonable, law-abiding person would NOT have thought the body switch was permanent. Presumably if the power to steal someone’s body exists the power also exists to undo it. And indeed, it was undone. Temporarily taking control of someone’s body against their will to use it for sex is sexual assault.
I thought about this. The crime is in the pimply teenager switching the bodies in the first place. If this happened by accident, if I was in someone else’s body by accident, then no, how could it be sexual assault? What am I supposed to do? What if I think it’s permanent, as someone said, or even say a year? Am I supposed to just deny myself for all of that time because it’s someone else’s body? No. As long as my consciousness is in it then it’s MY body.
The pimply faced teenager was in the wrong, but if whomever got switched into HIS body went out and did the normal things he would do anyway, that’s not wrong.
In this matter of first impression, the court considers whether Va. Code § 18.2-61(A)(ii) prohibits the act of engaging in sex while the body is being controlled by another mind or personality. We hold today that it does.
It’s not clear or not whether the kid intended to switch to be permanent. He performed the spell for a specific reason (to kill the guy’s brother) and I’m not sure if he had a plan for after that.
Oh, so many questions.
I should start by saying it feels like sexual assault to me … but then I was thinking, would I still think that way if the teenage kid got the new body, and then spent the week jerking off like a madman? Is it MORE assault-like because it involved another person?
And how does the body-switching work? Is it a literal switching of bodies, or is it more like that shape-shifting thing (like the model usually used on Buffy) where the molecules of the kid’s body rearranged themselves to look like the main character? If the woman got pregnant, would a DNA test come back to the kid, or the main character? What about a supernatural paternity test?
What was the main character doing, I assume in the teenage kid’s body, all this time while this was going on?
And switching over to whether the woman was a victim … does the woman know the main character, and did this impact her decision to have sex with him? This seems more like rape by fraud to me. But, if the guy was a stranger to her … is it really that different than other ways of changing one’s appearance? Sure, it’s more drastic, but if a woman slept with someone, and then a few months later he got a terrible haircut and gained a few pounds and started wearing a lot of Ed Hardy … could she say that she had been deceived into having sex with a hot guy who wasn’t actually hot? There’s no guarantee that anyone you sleep with is going to stay hot.
knowing nothing about Supernatural, i was trying to piece together Dean, Sam, Ancient communication stones and some hot crossover cameos. does not compute.