But let’s think real world here. Should your wife or girlfriend get 10 years in jail (or whatever the appropriate punishment is for 1st degree rape) a felony conviction, and registering as a sex offender, for waking you up to a blowjob?
But can you turn things around and see it from someone else’s perspective?
Given the nature of fetishes, I’m sure there are plenty of people who think it’s hot to get drunk, pass out, and then find out later what their significant did to them. Plenty of us here have said that being woken is a turn-on for us. The argument being made against implied consent is that this is always an illegal activity, even if the two parties explicitly discuss their intentions ahead of time.
Or what if you’re tied up and gagged during the sex act? Some people get off on that, but you’re not exactly able to give/revoke consent in that situation - especially if you guys forgot to set up safe words ahead of time. Do we put someone in jail for that?
Or let’s say you and the significant other haven’t discussed it, but you’re both drunk after some night of partying. You pass out, but the SO - who clearly has impaired judgment - goes ahead and has sex with you anyway. Should the treatment of this event automatically escalate to a criminal activity? Or should there be a conversation first where you say “Hey, that’s not cool. Don’t do it again.”
And just to be clear, I’m not condoning rape, spousal or otherwise. I think that consent should revokable in advance just like I think it should be possible to give consent in advance. I’m just saying that given all the weird and kinky things people get up to, we shouldn’t criminalize something that was maybe just a mistake or misunderstanding.
The target seems to be moving, but no, she shouldn’t. Is she going to?
If you are the person who got raped, I don’t think you’d be thinking “Oh, this is just a misunderstanding and my feeling of violation is completely unjustifiable.”
But that’s what the implied consent contingent is actually arguing. Because rape accusations do not happen because the government decides you’ve been raped. They happen because YOU decide you’ve been raped.
Shifting consent around shifts the burden around. When it comes to sex, we don’t tend to say that the person who feels violated should just live with it.
Whenever we discuss sexual assault cases, people forget there are steps between the act and the person being convicted and treated as a pariah. I find it difficult to imagine this resulting in a successful prosecution.
And the more I think about the surgery example the more ridiculous it is. In surgery, you’re told in advance exactly what’s going to happen, when, and why, and you consent to everything in detail. There’s a finite duration to all of that. Most people don’t consent to sex that way.
Yes, but if it’s so absurd that it’s “hard to imagine” successfully prosecuting something that appears illegal under the plain reading of current case law, that suggests current case law is flawed, no?
The last thing we want is for rape to be an “I know it when I see it” type of crime.
So you think it should be a serious felony, just not prosecuted or reported? If it is so bad, why shouldn’t I turn my girlfriend in to the cops since she has committed such a heinous crime? I’m not trying to be snarky, but how can you say that is rape on one hand, but on the other, it won’t be prosecuted so no worries?
Not all surgeries. Today was just like any other day. What if it was unfortunate and I was in a serious auto accident, unconscious, and needed surgery to relieve swelling on the brain? I didn’t consent to that. But the law looks at the totality of the circumstances and takes a good guess that I would consent if given the opportunity. So no battery charge against the surgeon.
Likewise, society should see that generally someone in a long term relationship wouldn’t object to being woken up to sex…