No, I mean if a husband and wife agree that, until further notice, it will be acceptable for either of them to initiate sexual advances whilst the other is asleep (possibly with other caveats and terms included - i.e. not when the sleeping party is ill, or has expressed a need for uninterrupted rest) - wouldn’t that constitute a contract, rather than consent (which can apparently expire)?
No, you can’t, because you’d effectively be contracting to be technically raped, and a contract to engage in illegal activity is a nullity.
That seems weird and wrong. Unconsciousness doesn’t mean a surgeon operating on me is technically assaulting me.
Could you explain further? I don’t want to misinterpret your statement.
You have to sign a consent form for surgery and even then there are limits on what the surgeon can actually do. Hint, would you be happy with it if you went under expecting your left leg to be amputated and when you woke up your left arm was missing as well?
So… If a married couple sign consent forms, with limits (like I actually mentioned above), what’s the problem?
How come?
That’s correct, but not for the reason you think. Unconsciousness doesn’t mean that because it’s still technically an assault even if you’re conscious. The surgeon’s only safe from jail because of laws which explicitly say something like “a licensed physician may use force to provide medically-recognized treatment by consent of the patient or if the patient’s life is in danger and a reasonable person would consent under the circumstances.”
But, to repeat the critical point here, that’s inapposite as a comparison to sexual assault because surgery without affirmative consent is, outside of the emergency context which obviously isn’t comparable, never acceptable. There is no such thing as “failure to object” to surgery; the idea is laughable. You either explicitly said to the doctor “go 'head, get at me” or you didn’t. Sexual assault works in exactly the opposite way. Sex without affirmative consent is presumptively OK, as long as there’s also no demonstration of non-consent; in other words, people “operate” on each other without consent all the time in the bedroom. I understand that the result seems absurd in a case where you’re assuming that all parties are consenting by the common definition, but we don’t treat sexual assault like regular assault, so consent to one doesn’t work like consent to the other. They just aren’t the same.
Because of the tendency of people to associate “forcible rape” with “real rape,” which suggests, more or less, that a rape without facial bruising wasn’t a rape.
Not sure what you mean here. How can someone give consent, affirmatively or otherwise, if he’s asleep?
In a long-term relationship you can probably be more relaxed about assuming you have consent, if only because you’re better at reading each other’s body language and can more reliably gauge each other’s intentions than if you don’t know each other less well. I’m not married, but my girlfriend and I have been together since 2004; I don’t have “implied consent” but there are things I can get away with asking about tacitly during rather than explicitly beforehand, and vice versa, which was not the case nine years ago.
He can’t. I’m not sure where the confusion’s coming from, but the inability of a person to give legal consent while unconscious is the basis for everything I’ve been saying.
I think the analogy to the surgeon and unconscious patient is a good one. It’s not battery because it is assumed that the unconscious person would consent to treatment which would help him survive and a reasonable surgeon would operate.
In a marriage, or a relationship, if a party protests that he/she was asleep and didn’t give consent, the right approach, IMHO, is for the jury to hear evidence on the prior state of the relationship and whether it was reasonable for the instigator to have assumed that consent was granted prior.
Any other construction leads to absurdities such that we all either know of people (or are guilty ourselves) of rape and are therefore sex offenders who need to do time in prison. It is a normal part of many relationships, and I question the real world implications that a “zero tolerance” policy that some are advocating would have on normal, reasonable people.
Why is it only sex that prior consent is invalid according to this thought? If I tell a neighbor that he is free to come in my house and get a drink from the fridge, does he have to ask me every time to not be guilty of trespass?
Because it implies some types of rape are, for lack of a better word, “rapier” than others. It’s just stupid, and you most often hear it used when someone is saying one type of assault - whether it’s sex with someone who is unconscious or sex under the threat of violence or retribution - is, you know, kinda rape, but not really rape. People who say that stuff are often operating under the assumption that real rape is assault by a stranger in a dark alley, and that’s usually not what happens.
But that consent applies to a specific instance. It doesn’t mean the surgeon can cut you up whenever he feels like it. And you have to be unconscious for a lot of surgeries. That’s required. You don’t have to be unconscious for sex. Usually that’s not what you want.
But the state of relationship may speak to the state of mind of the instigator, but not of the “instigatee” (for lack of a better word). The relationship might be whole and intact, but if the instigatee doesn’t want sex for one of the myriad reasons someone might not want sex, and thus would not have consented if s/he were physically able to (i.e. if they were awake and/or sober) the fact that the relationship isn’t rocky doesn’t change the fact that there was no consent and wouldn’t leave the instigatee feeling less violated. It would only change the likelihood of violation turning into a larger fight or a criminal complaint.
That this means that many people are technically guilty of sexual assault or rape is indicative not with a problem with the law, but with how we as a society understand, or more importantly, fail to understand both personal autonomy and sexual consent. In fact, as a society we’re actively hostile to both concepts. In this very thread, both have been derided for no other reason than because they might, at some point, require someone to take a moment to ask first, or because they might spoil someone’s fun, without any regard to the person on the other half of the equation whatsoever.
Your consent for your friend to enter your house is certainly conditional. Even with the most open and casual relationship, there would be times when you would not be okay with a neighbor walking in to “grab a drink” because of what you’re doing at the time.
That would apply all the more when you’re not at home. You certainly wouldn’t expect your neighbor to just drop in and raid your fridge while you’re at work, even if they have a key, and even if it’s fine in the evening when you get home.
Consider the equivalence, then, between your house when you’re not there, and your sexual partner’s body when they’re not conscious.
People could have such an arrangement if they so chose - you’re assuming they wouldn’t, but they certainly could.
Because trespass law tells us that license is valid until revoked, while criminal law tells us that consent is not. Having said that, it’s absurd that anyone would argue that people in an ongoing sexual relationship can’t assume the other party consents to sex absent indications to the contrary.
I’m relatively certain that you don’t yourself actually believe that people in all ongoing sexual relationships can assume the other party consents to sex in all situations, absent indications to the contrary. So it isn’t absurd, and the whole discussion becomes about which category you place each individual instance into, which is a much messier and much less reductive question.
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Why is it only sex that prior consent is invalid according to this thought?
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Because we don’t require affirmative consent to sexual activity; we require an absence of non-consent. You can’t find consent from the absence of non-consent in a situation where an expression of non-consent is impossible. If you want consent to sex to work the same as consent to enter your home, or consent to surgery, that can certainly be accomplished. But it means we all are committing sexual assault if we don’t acquire affirmative consent to each sexual act we engage in. A piecemeal approach that says “implied consent most of the time, but affirmative consent in advance if you’re getting drunk or going to sleep or getting choked out” seems to make sexual assault law weirder, less straightforward and even less like any other kind of law under the guise of making it less “special.”
It also seems to place making sex more convenient as the highest priority of sexual assault law, which I would prefer to be disfavored.
Fair enough, but I certainly do in the case of sleeping or drunk spouses, which is the matter under discussion.
The examples of waking someone up with the initiation of a sex act are a different thing from having sex with someone who is asleep or unconscious the whole time. The former at least have a chance to express their opinion on the matter. To me, there is a high squick factor to someone essentially using me as a blow-up doll to get off in and I don’t know anything about it. Even someone I’m in a commited relationship with.
… if somebody sleeps through the entire sex act, you’re doing it wrong. 