Does rape need active protest from the victim to occur?
For example if some couple starts spontaneous intercourse, with neither side verbally stating the will (or opposite) could it still be legally considered rape if either side decides to sue afterwards?
Well, it’s certainly rape if the victim is unconscious and unable to protest.
“Implied consent” would be the defense if asserted by either party against the other.
This of course is quite different from a man breaking in a home, and just because the woman does not protest due to fear of death, the intruder can NOT proffer an Implied consent defense.
There was a case many years ago, in TX, I believe, where a man broke into a womans house and he forced her to have sex, she insisted he wear a condom, as to not possible get HIV. Well, the defense attorney argued by doing so, it was then consensual sex? Oh really?
I believe it can technically be considered rape if one of the people is drunk and can’t give consent. It’s also rape if one of the people is under 18 (and for the sake of argument, the other person is more then a few years older so Romeo and Juliet laws don’t count).
Two people with guns break into your house. One ties up your husband, puts the gun to his head, and orders you to have sex with the other one or your husband will be shot dead.
Do you protest?
Happened to Fran Drescher and Peter Marc Jacobson. The defense tried to argue it wasn’t rape because the woman wasn’t under any threat of physical harm to herself when she consented to sex.
I remember the Texas case. The first grand jury refused to press charges, arguing “consent.” The second did, and the rapist was found guilty.
Firstly, no one sues for rape. A crime is an offense against the state and therefore is prosecuted by the State. The victims opinion for these purposes is irrelevant and indeed in cases of spousal rape it is not unknown for the victim to defend the accused.
Secondly, rape occurs when a person has sexual intercourse with another knowing or at least having cause to be believing that the other was not consenting. If your senario comes under that heading, meaning that one person knew or should have suspected that the other was not consenting, then yes it would be rape; legally speaking. So the answer to your question is simple, no active protest is not needed.
Your example will however be very unlikely to result in a conviction or even a charge. Just because something is legally possible does not mean that in practice a conviction is necessary. While there are several reported cases of rape convictions sans much or any protest from the victim, in practice for your specific example it would (in the absence of other evidence) be very difficult for a trier of fact to conclude that rape did in fact occur,
That was a Factual determination not. legal one.
IIRC, two other conditions of rape in Canadian criminal code (OK, it’s not called rape any more, penetration is not the defining act) is when the victim is feeble-minded or deceived. It’s hard to imagine a scenario where an otherwise alert woman would be deceived into thinking it’s her husband or boyfriend when it’s someone else. We leave this as an exercise to the reader’s imagination.
Perhaps another issue is where the woman is deceived, say, by having a “fake” minister perform a marriage. (“No nookie until we’re married”) Obviously there’s some form of fraud there, but would it constitute rape? She would not have consented if she had known all the facts, but the same can be argued about any slimy liar.
Can you claim rape if the guy simply did not tell you he was married? (“I would never do it with a married man!”) One of the things Julian Assange is being persecuted for is that he slept with the woman, then when she woke up the next morning he was alrady doing it, without a condom. She was fine with this until she compared notes with another woman and realized she was not so special and her risk of STDs went up. (But in fact, she did not claim rape, that was the govenment’s idea.)
Doesn’t have to be imagination: I read a news story a few years ago about a woman who married a twin. Her husband was out of town on a business trip, and his twin pretended to be him, back from the trip early. I can’t remember if he actually slept with her or if she figured it out before it got that far, but it resulted in the husband and wife divorcing, because the husband wanted to argue that he shared so much with his twin, and his twin was so much like him, that the wife really couldn’t complain that the twin tried to sleep with her, and she (rightly) wanted to press charges. I can’t remember how the case turned out, or if it had even gone to court when I read the article. Sadly, I can’t pull it up right now, because all the “twin rapes wife” stories are about that Idaho Craigslist asshole.
Yeah, identical twins are an obvious option. Usually (I hope) parents and others who are around them can tell them apart.
Another option is the “sneaking into the bed after the lights are out”. Or, if we’re going for a real stretch, the face covered in bandages or the “I’ve had plastic surgery… yes, down there too” routine.
The key I assume is being deceived as to the identity of the other person, not simply confused as to the overall situation, like a fake marriage.
Obviously, some people would react badly when their brother is threatened with 10 to life. But you’d think he’d react even more badly to someone trying to rape his wife… if not, good riddance.
A few years ago, my wife served on a jury for a criminal case involving a rape that the prosecutor pursued here in San Diego. In this case, the man and woman involved had previously dated and messed around, but with no prior intercourse (other sexual acts, but not that). On this particular date, after being broken up for some time then getting back together, they were messing around again, the women stated (while sober) that she was not interested in intercourse. Then the two of them got drunk and intercourse occurred, possibly when she was passed out, which was a big issue in the case. Upon realizing what had occurred when she woke up the next day, she was horrified, threw him out, and reported the rape to the police. I’m sure there were more details, but the jury did ultimately find the guy guilty…
California law defines many situations as rape that don’t involve active protest from the victim. They include sex under the fear of bodily harm or violence, sex with a person who is unable to legally give consent, sex with someone who is so drunk or drugged out that they can’t resist, sex with someone who is unconcious or asleep. . . California law does not define as rape simply as sex with someone who doesn’t explicitly say “yes.”
In the common law this would not be rape. However, different jurisdictions may take different approaches, as the Sabbar Kashur case shows (granted, there was a little more going on there than in your run-of-the-mill “rape by deception”).
The allegation is that Assange had sex with the woman while she was asleep and, therefore, legally unable to consent. If, as alleged, she had previously refused to have sex with him without a condom, he could not claim that her consent was “implied” (or whatever legal term the Swedes use for reasonable belief that consent was present). Intercourse with a person who cannot consent and where the other person could not have reasonably believed they *were *consenting is rape. Her feelings about it after the event do not alter the legal character of the event.
If I were on a jury, going to sleep naked with a person after having sex seems to imply a certain degree of consent to whatever happens next. Depends how forcefully she implied the “use a condom” earlier. She’s not claiming she said “Stop” half-way through the act, IIRC. She just got upset after the fact (a day or two later) to discover he also had sex wih that other **** without a condom…
I don’t think there’s a retroactive component to withdrawing consent.
In any case, they were not pressing charges for rape, that was the authorities’ idea for some reason. They just want to ask the police if they could force him to take an STD test.
Do you happen to recall where you heard this?
I don’t say it’s impossible, especially when the defense has nothing of value to try, but it would be an unusual claim… the law generally does not exclude the coercion of a threat applied to another person as a threat for the purposes of rape.
Then’s there’s thisstory:
There are also situations where you can be convicted of rape even if the “victim” gives full consent or even initiates sex: minor/adult, student/teacher, prisoner/guard, patient/doctor, etc.
The first is OK (but still it could be classified as another crime, not rape)… but the rest? Is american law really like that?
I’m not sure what you’re saying here. Are you saying consensual sex between a minor and an adult is okay or that classifying consensual sex between a minor and an adult as a serious crime is okay?
Yes. It varies from state to state but these are real laws.
I was under the impression that “rape by deception” only applied when the fraud was about the perpetrator’s fundamental identity, such as pretending to be the victim’s spouse or pretending to be a specific, identifiable other person (such as claiming to be Tom Cruise when you are not). Saying you have a Ferrari or a PhD from Harvard when you don’t in order to get someone in bed is slimy, but not “rape” afaik.