Removing condom during sex - is it sexual assault/rape?

[Barrister]

https://www.cbc.ca/news/politics/rcmp-stealthing-sexual-assault-1.6062324

On paper, Anna DiBella's experience seems like a victory. She reported a sexual assault to police. Her alleged perpetrator now faces charges.

But DiBella said she struggled for weeks to convince the RCMP to investigate and charge a man for taking off a condom during sex without her knowledge. It was a process, she said, that left her feeling vulnerable all over again.

"I was feeling worse than I had just being a sexual assault victim at this point, because I felt very unprotected. Like, there's been a crime committed against me," she said.

"If someone's broken a law, why does no one care? And I felt ... why are they empowering this guy?"

In early April, the Surrey, B.C. resident went on a date with someone she met on the online dating app Bumble. The evening started off well, she said.

She brought him back home, she said, where they began consensual sex with a condom. DiBella said the man lost his erection and asked her to let him remove the condom. She said she insisted he keep it on because she wasn't on birth control.

At one point, she said, he asked her to turn over.

"And then next thing I know, he was ejaculating on my back. I was confused why that was happening. And I said, 'What's going on? Are you still wearing a condom?' He said, 'No, I only took it off for a little bit," she said.

(more in the link)

What say you Languish?  Does removing a condom without consent during sex vitiate the consent to have sex?  Does it equal sexual assault or rape?

As mentioned in the article it is something the courts have kind-of struggled with (including the Hutchinson decision mentioned).  As a general rule the courts have been very reluctant to get too involved in inserting a fraud analysis into consent.  If you lie and say you're a movie director and you're looking for a new actress for your latest movie to get someone into bed the courts will almost certainly not get involved.

But there has been one big exception - HIV.  The courts have held that failure to disclose being HIV+ will likely vitiate consent.  But honestly 30+ years later that's starting to feel like a reaction from the HIV panic of the 80s/90s, as it doesn't apply to any other STD that I'm aware of.

But issues of birth control and reproduction do seem intimately connected to the issue of consent to sexual activity, so courts have been willing to get involved.  See Hutchinson where the Accused deliberately pocked holes in the condom - the court unanimously convicted him of sexual assault, even if the justices couldn't agree on why.

[Zanza]

Doing something during sex your partner explicitly does not want should be a sexual crime. The severity depends on the deed of course. No idea about the exact definitions, so I cannot say whether it is assault or rape.

[grumbler]

This was some kind of sexual assault, IMO, but not rape.  Probably not a highly serious sexual assault either, which it would have been had he ejaculated inside her.

[Barrister]

Doing something during sex your partner explicitly does not want should be a sexual crime. The severity depends on the deed of course. No idea about the exact definitions, so I cannot say whether it is assault or rape.

So I nibble of my partner's ear during sex.  My partner says "I hate it when people nibble on my ear".  Is that a crime?  Do we need to explicitly discuss every possible sexual act in advance?  That feels wrong to me.

But if that seems wrong, what about something far more blatant.  I'm with my partner, we agree to have 'sex', when suddenly and without warning I ram my penis in my partner's ass.  Is that a crime?  I'm more inclined here to say "yes".  But then how is different from the first scenario?

[Barrister]

This was some kind of sexual assault, IMO, but not rape.  Probably not a highly serious sexual assault either, which it would have been had he ejaculated inside her.

Curious how other jurisdictions might define it, but there are only three levels of sexual assault.  Most serious is aggravated sexual assault, where someone is maimed or wounded during the assault.  Next is sexual assault with a weapon/uttering threats/causing bodily harm.  Then there is just regular sexual assault.  But "regular" sexual assault covers everything from an unwanted butt grab to full penetration (and ejaculation) without consent.

I threw rape in as a more colloquial word, but it no longer exists in Canadian law.

[Jacob]

Bottom line is that engaging in non-consensual sexual activity - and that includes through deception and sleight-of-hand - is a form of sexual assault. Whether to classify it as rape or not, I'm fairly agnostic about but I think it's reasonable that it should be punishable by law.

[grumbler]

Doing something during sex your partner explicitly does not want should be a sexual crime. The severity depends on the deed of course. No idea about the exact definitions, so I cannot say whether it is assault or rape.

So I nibble of my partner's ear during sex.  My partner says "I hate it when people nibble on my ear".  Is that a crime?  Do we need to explicitly discuss every possible sexual act in advance?  That feels wrong to me.

But if that seems wrong, what about something far more blatant.  I'm with my partner, we agree to have 'sex', when suddenly and without warning I ram my penis in my partner's ass.  Is that a crime?  I'm more inclined here to say "yes".  But then how is different from the first scenario?

Des the law not distinguish between sexual and non-sexual activity?  Is nibbling on someone's ear a sex act?  If someone physically does something to another that they know (or should reasonably know) the other person does not want done, I thought we called that "assault" not "sexual assault."

[Admiral Yi]

Book him Dano.

[Barrister]

Bottom line is that engaging in non-consensual sexual activity - and that includes through deception and sleight-of-hand - is a form of sexual assault. Whether to classify it as rape or not, I'm fairly agnostic about but I think it's reasonable that it should be punishable by law.

There was an infamous case in Israel a number of years ago.  A woman called police after she had sex with a man who claimed to be jewish.  In fact he was an arab.  It was heavily criticized at the time as being thinly-veiled racism.

https://abcnews.go.com/International/palestinian-claimed-jew-jailed-rape-deception/story?id=11224513

Dishonesty is not exactly unheard of in navigating sexual consent - from lying about your job, your community, your age, whether you're married or not, etc.  Should all of those be criminalized?

[Berkut]

How is the distinction Beebs is trying to tease out different in terms of sexual assault versus any other kind of assault? The same "scale" problems apply, right?

If I am arguing with someone on the street and hit them in the head, causing them to get a nosebleed, that is assault.

If I hard foul someone in a basketball game, and they get a nosebleed, that is not assault.

If I intentionally foul someone in a basketball game where I just haul off and hit them....whelp, back to assault!

All these nuances are within the same basic definition of what minimally constitutes assault, but we don't have to lay them all out specifically in the law, right? That is what we have prosecutors and courts for - to say "Nibbling someone's ear without consent does not meet the bar, vis-a-vis see JoeTheEarGuy vs. Jane, 2013" and hence we aren't prosecuting that!

But wait - he actually BIT her ear and drew blood?? Well, THAT is different from that case, so maybe we will prosecute that....

Right?

[grumbler]

In Virginia there are four degrees of sexual assault, with the first degree being assault using violence or threat of violence, or sexual assault of someone under 13 years of age.  Fourth degree (which is a Class A Misdemeanor) is

Sexual harassment, stalking, or lewd behavior toward another person without the consent of that person
Sexual intercourse with a person 16 or 17 years old

The first definition seems applicable here, in that taking off a condom and ejaculating on her back could be considered lewd behavior. 

[Berkut]

Bottom line is that engaging in non-consensual sexual activity - and that includes through deception and sleight-of-hand - is a form of sexual assault. Whether to classify it as rape or not, I'm fairly agnostic about but I think it's reasonable that it should be punishable by law.

There was an infamous case in Israel a number of years ago.  A woman called police after she had sex with a man who claimed to be jewish.  In fact he was an arab.  It was heavily criticized at the time as being thinly-veiled racism.

https://abcnews.go.com/International/palestinian-claimed-jew-jailed-rape-deception/story?id=11224513

Dishonesty is not exactly unheard of in navigating sexual consent - from lying about your job, your community, your age, whether you're married or not, etc.  Should all of those be criminalized?

None of those things should be criminalized, because (IMO) none of them materially harm the person you are having sex with in and of themselves. Sex with a married man is not harmful to you in some material fashion then sex with a non-married man.

Sex with someone who has HIV is most definitely more potentially harmful - therefore THAT lie should have a criminal consequence.

Being an asshole is not illegal.

And I think there is a pretty easy to apply "standard and expected" measure around sexual acts as well. I don't think anyone actually assumes that consent to sex includes consent to anal sex for example, and anyone who claims they thought it did is full of shit, especially if they claimed it was so clear that they could just do it without asking first, verbally or otherwise.

[Barrister]

Doing something during sex your partner explicitly does not want should be a sexual crime. The severity depends on the deed of course. No idea about the exact definitions, so I cannot say whether it is assault or rape.

So I nibble of my partner's ear during sex.  My partner says "I hate it when people nibble on my ear".  Is that a crime?  Do we need to explicitly discuss every possible sexual act in advance?  That feels wrong to me.

But if that seems wrong, what about something far more blatant.  I'm with my partner, we agree to have 'sex', when suddenly and without warning I ram my penis in my partner's ass.  Is that a crime?  I'm more inclined here to say "yes".  But then how is different from the first scenario?

Des the law not distinguish between sexual and non-sexual activity?  Is nibbling on someone's ear a sex act?  If someone physically does something to another that they know (or should reasonably know) the other person does not want done, I thought we called that "assault" not "sexual assault."

Given the range of human sexual activity almost anything can be a sex act, depending on the circumstances.  Dressing up in a plush costume can be a sex act to a furry.  Generally speaking it's a sexual act when it interferes with the sexual integrity of a person.  Generally speaking slapping a woman on the butt would be considered a sexual act, though it could be argued if you're I dunno playing a sport that your slap was not meant in a sexual way.

In my example, nibbling someone on the ear while engaging in sex is pretty obviously part of a sexual act.

[Berkut]

What I don't understand Beebs is why you are making this slipperly slope arguments - or appearing to.

I don't think saying "Sticking your dick in someone's ass without asking first is assault" means that nibbling on someones ear without asking first must be assault as well.

The same way that punching your buddy on the shoulder while screwing around isn't assault but punching him in the face in a fit of rage because you found out he was having anal sex with your girlfriend is....

[Barrister]

All these nuances are within the same basic definition of what minimally constitutes assault, but we don't have to lay them all out specifically in the law, right? That is what we have prosecutors and courts for - to say "Nibbling someone's ear without consent does not meet the bar, vis-a-vis see JoeTheEarGuy vs. Jane, 2013" and hence we aren't prosecuting that!

But wait - he actually BIT her ear and drew blood?? Well, THAT is different from that case, so maybe we will prosecute that....

Right?

That's fine - if you trust judges and lawyers like me to draw the line in the right place.  And the more grey areas there are in law, the more discretion you give to police and prosecutors and the less certain you can be of any one outcome.