# Should "implied consent" apply to married couples? **URL:** \ **Category:** Great Debates\ **Created:** [September 17, 2013, 3:28am UTC](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025 "2013-09-17T03:28:26Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [September 17, 2013, 2:34pm UTC](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025/21 "2013-09-17T14:34:54Z")
> [@Mangetout](#): > > Could such a consent be regarded as a contract, if properly framed? Do you mean like prostitution? ---
**Author:** ![Rachellelogram](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rachellelogram/32/8689_2.png) [@Rachellelogram](https://boards.straightdope.com/u/Rachellelogram)\ **Post date:** [September 17, 2013, 2:40pm UTC](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025/22 "2013-09-17T14:40:46Z")
> [@Zoe](#): > > I’ve been thinking that the laws were the same for a married couple and two unmarried people. I have no links to that, but it doesn’t make sense to permit sex with a woman who is not fully aware. Or a man either. > > This is one of those examples of a man treating a woman like **a thing**. > > A little foreplay can do wonders for waking up a sleeping woman and getting her consent. It’s still a no-no if she is drunk. So women never fondle their sleeping husbands? :rolleyes: ---
**Author:** ![DataX](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@DataX](https://boards.straightdope.com/u/DataX)\ **Post date:** [September 17, 2013, 3:02pm UTC](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025/23 "2013-09-17T15:02:11Z")
> [@Rachellelogram](#): > > So women never fondle their sleeping husbands? :rolleyes: Yes - I think your point is valid. Some of the posts here seem ridiculous… Everyone needs to consent to everything? So if I see my wife naked in the bathroom - I can’t come up behind her and cup her breast lovingly in my hand without saying: “Excuse me wife, I am approaching from behind, I would like permission to fondle you before I make contact with my hands!” Otherwise I am committing sexual assault? ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [September 17, 2013, 3:44pm UTC](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025/24 "2013-09-17T15:44:50Z")
Well, yeah, everyone does, in fact, need to consent to everything. But the thing you’re finding ridiculous is actually a result of the same idea you’re trying to protect. You want it to be the case that where the relationship makes it plain that consent exists, you can make a sexual advance and, as long as the other party doesn’t object, we’ll say there’s consent. In other words, sexual assault law depends on asking whether _non_-consent was absent, instead of asking whether affirmative consent was present, and you think that’s a good approach. It reflects the reality of sexual relationships in that, you know, there’s always an act that gets things going, and people generally don’t announce it when they’re doing it; person A makes a move and person B shows consent by getting involved. But so the subject of this thread is the other side of that coin: if you want it to be OK to walk up to your wife and grab her breasts, and proceed accordingly, because it’s her failure to protest, given the relationship, that shows implied consent, then when she’s unconscious, we have to say that technically there’s no implied consent. Because she can’t protest. We can’t say an unconscious person demonstrated anything by failing to withdraw consent. Affirmative consent in advance isn’t the standard - if it were the standard then we’d have to revisit paragraph one. The trouble is that the law doesn’t know you or your relationship, and the only time the law would ever be asked to make a determination about your relationship, by definition you and your partner would be in some disagreement about the nature of the consent implied by that relationship. And what then? ---
**Author:** ![LinusK](https://avatars.discourse-cdn.com/v4/letter/l/258eb7/32.png) [@LinusK](https://boards.straightdope.com/u/LinusK)\ **Post date:** [September 17, 2013, 4:12pm UTC](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025/25 "2013-09-17T16:12:36Z")
> [@Zoe](#): > > I’ve been thinking that the laws were the same for a married couple and two unmarried people. I have no links to that, but it doesn’t make sense to permit sex with a woman who is not fully aware. Or a man either. > > This is one of those examples of a man treating a woman like **a thing**. > > A little foreplay can do wonders for waking up a sleeping woman and getting her consent. **It’s still a no-no if she is drunk.** Isn’t alcohol the leading cause of children? ---
**Author:** ![dracoi](https://avatars.discourse-cdn.com/v4/letter/d/90db22/32.png) [@dracoi](https://boards.straightdope.com/u/dracoi)\ **Post date:** [September 17, 2013, 5:13pm UTC](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025/26 "2013-09-17T17:13:47Z")
If you took my top ten list of sexual encounters with my wife, half of them are times when one of us has woken up the other. (And we do this so rarely that these few occasions are most of the times we’ve woken each other up.) So in my mind any valid law must recognize some kind of implied consent. I say this while also understanding that we can’t just make a blanket rule that says “You’re married, go for it!” If any partner doesn’t want a sexual activity to happen, then there needs to be a way to make that clear and to have their desire protected by the law. But I really do think the law needs to be framed from the assumption of implied consent within marriage until explicit non-consent is given. For non-married couples, I can see using a much stricter set of standards that would eliminate implied consent. ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [September 17, 2013, 5:49pm UTC](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025/27 "2013-09-17T17:49:54Z")
This is absurd, guys. Every one of my partners has had a standing invitation to wake me up with sex, and usually the permission is returned. Of course it isn’t just assumed, it is discussed fairly often. But there absolutely is implied consent in every relationship I’ve been in to touch, kiss, fondle, etc. when circumstances allowed, up to and including sex. The only time that stops is when they decline. “No, not tonight, I’m tired/sick/injured/uninterested/whatever.” Or “don’t touch me like that in public/around my parents/while I’m holding the baby/etc.” Or for whatever reason they are actually incapacitated or obviously not into it (not drunk, but passed out – or else grumpy, mad at you, resistant, etc.). Or if you kiss your wife of 10 years without asking first, it’s sexual assault? Who wants to defend this ridiculous position? ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [September 17, 2013, 6:33pm UTC](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025/28 "2013-09-17T18:33:42Z")
Post 24 does, which is in response to Post 23, which is more or less identical to yours. ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [September 17, 2013, 7:18pm UTC](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025/29 "2013-09-17T19:18:11Z")
> [@Little\_Nemo](#): > > That wouldn’t work legally. There’s a duration to consent. You can’t claim consent to sex exists because somebody had agreed to it in the past. Yeah, but agreeing to a single sex act in the past is a very different thing than explicitly saying “I consent to you initiating sex while I’m asleep for the next year.” Seems like that could be a fun way to spice up the anniversary celebration. A renewing of vows of a sort? ---
**Author:** ![wonky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wonky/32/393_2.png) [@wonky](https://boards.straightdope.com/u/wonky)\ **Post date:** [September 17, 2013, 7:19pm UTC](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025/30 "2013-09-17T19:19:28Z")
> [@Jimmy\_Chitwood](#): > > Well, yeah, everyone does, in fact, need to consent to everything. But the thing you’re finding ridiculous is actually a result of the same idea you’re trying to protect. You want it to be the case that where the relationship makes it plain that consent exists, you can make a sexual advance and, as long as the other party doesn’t object, we’ll say there’s consent. In other words, sexual assault law depends on asking whether _non_-consent was absent, instead of asking whether affirmative consent was present, and you think that’s a good approach. It reflects the reality of sexual relationships in that, you know, there’s always an act that gets things going, and people generally don’t announce it when they’re doing it; person A makes a move and person B shows consent by getting involved. > > But so the subject of this thread is the other side of that coin: if you want it to be OK to walk up to your wife and grab her breasts, and proceed accordingly, because it’s her failure to protest, given the relationship, that shows implied consent, then when she’s unconscious, we have to say that technically there’s no implied consent. Because she can’t protest. We can’t say an unconscious person demonstrated anything by failing to withdraw consent. Affirmative consent in advance isn’t the standard - if it were the standard then we’d have to revisit paragraph one. > > The trouble is that the law doesn’t know you or your relationship, and the only time the law would ever be asked to make a determination about your relationship, by definition you and your partner would be in some disagreement about the nature of the consent implied by that relationship. And what then? Very good post. People are trying to say that you have to actively take back consent, then saying that having sex with someone who is incapable of actively taking back consent is still okay because they themselves would be okay with it. ---
**Author:** ![Malthus](https://avatars.discourse-cdn.com/v4/letter/m/85f322/32.png) [@Malthus](https://boards.straightdope.com/u/Malthus)\ **Post date:** [September 17, 2013, 7:22pm UTC](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025/31 "2013-09-17T19:22:33Z")
My wife and I often fall asleep and/or wake up in positions that would be considered sexual assault, if we assumed them with random, non-consenting folks. :eek: ---
**Author:** ![Farin](https://avatars.discourse-cdn.com/v4/letter/f/e79b87/32.png) [@Farin](https://boards.straightdope.com/u/Farin)\ **Post date:** [September 17, 2013, 7:37pm UTC](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025/32 "2013-09-17T19:37:46Z")
> [@Malthus](#): > > My wife and I often fall asleep and/or wake up in positions that would be considered sexual assault, if we assumed them with random, non-consenting folks. :eek: If you get tired of her, send her to jail for sexual assault, get an expedient divorce due to duress and get replace her with someone in her 20’s. 😃 ---
**Author:** ![Malthus](https://avatars.discourse-cdn.com/v4/letter/m/85f322/32.png) [@Malthus](https://boards.straightdope.com/u/Malthus)\ **Post date:** [September 17, 2013, 7:59pm UTC](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025/33 "2013-09-17T19:59:11Z")
> [@Farin](#): > > If you get tired of her, send her to jail for sexual assault, get an expedient divorce due to duress and get replace her with someone in her 20’s. 😃 However, she could do the same to me … I must strike first! :eek: We could both end up in jail for mutual assault! ---
**Author:** ![dracoi](https://avatars.discourse-cdn.com/v4/letter/d/90db22/32.png) [@dracoi](https://boards.straightdope.com/u/dracoi)\ **Post date:** [September 17, 2013, 8:33pm UTC](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025/34 "2013-09-17T20:33:26Z")
> [@Jimmy\_Chitwood](#): > > The trouble is that the law doesn’t know you or your relationship, and the only time the law would ever be asked to make a determination about your relationship, by definition you and your partner would be in some disagreement about the nature of the consent implied by that relationship. And what then? While I agree that the issue will come up only when there’s disagreement, I wouldn’t be so sure that the disagreement is about the sex. When my parents were getting divorced, absolutely ridiculous things were brought up in the determination of custody. I could absolutely see my father saying “Remember when you fondled me while I was sleeping? I’m pressing charges now, and now you’re a sex offender and can’t have custody.” (In fact, my father made a complete ass of himself in a second divorce when he stated that he was “physically abused” by my step mother. Even according to his own version of events, they were in bed when she tossed her arm onto his side of the bed, scratching his face with her ring. There was no argument. He didn’t call the police. He and she only differ on whether she was asleep at the time.) ---
**Author:** ![Farin](https://avatars.discourse-cdn.com/v4/letter/f/e79b87/32.png) [@Farin](https://boards.straightdope.com/u/Farin)\ **Post date:** [September 17, 2013, 10:40pm UTC](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025/35 "2013-09-17T22:40:56Z")
> [@dracoi](#): > > (In fact, my father made a complete ass of himself in a second divorce when he stated that he was “physically abused” by my step mother. Even according to his own version of events, they were in bed when she tossed her arm onto his side of the bed, scratching his face with her ring. There was no argument. He didn’t call the police. He and she only differ on whether she was asleep at the time.) Er. Not to be blaze about physical abuse, but how long before the divorce did that even happen? Did he seriously stew about a ring scratch for any length of time? Or was this “two weeks ago right before the divorce started…”? Wasn’t it also his fault since he bought the ring? > [@Malthus](#): > > However, she could do the same to me … I must strike first! :eek: > > We could both end up in jail for mutual assault! To be honest, mutual assault sounds hotter than a 20 year old. At least the first time it happens. ---
**Author:** ![dracoi](https://avatars.discourse-cdn.com/v4/letter/d/90db22/32.png) [@dracoi](https://boards.straightdope.com/u/dracoi)\ **Post date:** [September 18, 2013, 12:47am UTC](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025/36 "2013-09-18T00:47:39Z")
> [@Farin](#): > > Er. Not to be blaze about physical abuse, but how long before the divorce did that even happen? Did he seriously stew about a ring scratch for any length of time? Or was this “two weeks ago right before the divorce started…”? > > Wasn’t it also his fault since he bought the ring? I don’t remember how long before it was, but it could have been anytime. It’s not really a matter of stewing over the scratch, it’s just his habit of twisting past facts into something that fits a present need. My father is a big one for doing things like that. “Ten years ago, you forgot to rewind my VHS tape, so now you owe me.” In fact, he loved to tell a supposed Native American legend about a horse and a rattlesnake. The rattlesnake promises not to bite the horse if it can get a ride across a wide river. On the other side, the snake bites the horse. When asked why, it says “You knew I was a snake when you picked me up.” In his mind, he’s the horse. Which is so ironic because I don’t know anyone who fits the snake better. Anyway, back to our scheduled thread… ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [September 18, 2013, 3:35am UTC](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025/37 "2013-09-18T03:35:10Z")
> [@dracoi](#): > > I don’t remember how long before it was, but it could have been anytime. It’s not really a matter of stewing over the scratch, it’s just his habit of twisting past facts into something that fits a present need. My father is a big one for doing things like that. “Ten years ago, you forgot to rewind my VHS tape, so now you owe me.” > > In fact, he loved to tell a supposed Native American legend about a horse and a rattlesnake. The rattlesnake promises not to bite the horse if it can get a ride across a wide river. On the other side, the snake bites the horse. When asked why, it says “You knew I was a snake when you picked me up.” In his mind, he’s the horse. Which is so ironic because I don’t know anyone who fits the snake better. > > Anyway, back to our scheduled thread… Thought that was the scorpion and the frog? ---
**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:** [September 20, 2013, 6:19pm UTC](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025/38 "2013-09-20T18:19:37Z")
> [@LinusK](#): > > Isn’t alcohol the leading cause of children? Remember kids, don’t drink and park! Accidents in cars cause people! “Parking” is an American term for the practice of a couple on a date parking their car in a secluded spot in order to make love discreetly. Some areas have stereotypical “lovers’ lanes” where this is traditionally done. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [September 20, 2013, 6:35pm UTC](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025/39 "2013-09-20T18:35:24Z")
> [@Northern\_Piper](#): > > Supreme Court of Canada said no, two years ago: > > [Supreme Court decision on sexual consent](http://www.cbc.ca/news/canada/supreme-court-decision-on-sexual-consent-1.1016085) There was a lengthy thread on this a few years back. The consensus amongst lawDopers was that the SCC was putting pressure on Parliament to fix a badly drafted provision. Did they? ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [September 20, 2013, 6:40pm UTC](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025/40 "2013-09-20T18:40:32Z")
> [@LinusK](#): > > forcible rape I hate this phrase so much. [Previous page](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025.md?page=1) [Next page](https://boards.straightdope.com/t/should-implied-consent-apply-to-married-couples/669025.md?page=3)