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

[Malthus]

What happened was he not only disregarded her request to wear a condom, but also put her at risk of a potentially deadly medical condition - pregnancy. Additionally, had she become pregnant and didn't believe in abortion, he then put her in a position to either give up a child she didn't want but may now feel a bond with due to the pregnancy or keep a child she didn't want.

This isn't just about whether or not he nibbled on her ear after she asked him not to. He threatened her life with his actions, as well as precariously put her into a horrible moral quandary had he impregnated her.

He took control of her body away from her with his actions. How is that not sexual assault/rape?

Not only pregnancy - also STDs. Which can apply to anyone having sex (such as removing a condom during gay sex, for example).

Issue to me is that person A said they didn't want to take the risk, and person B disregarded their stated wishes, putting them at a risk they said they did not want. Person A consented to the sex, but not to the risks that went with unprotected sex. That strikes me as behaviour that ought to be subject to criminal sanctions if some sort, though I admit it doesn't fit easily in the ordinary meaning of sexual assault, which usually concerns having sex without consent.

I would have no problem making it criminal behaviour under a different heading, like reckless endangerment. The severity of which could be increased to done sort of malicious endangerment if, for example, the condom removing person B knew they had a STD. There have been cases like that, of evil people who got AIDS and then deliberately set out to infect others by having unprotected sex with them - though I can't remember off the top what crime they were charged with when caught.

[Barrister]

What happened was he not only disregarded her request to wear a condom, but also put her at risk of a potentially deadly medical condition - pregnancy. Additionally, had she become pregnant and didn't believe in abortion, he then put her in a position to either give up a child she didn't want but may now feel a bond with due to the pregnancy or keep a child she didn't want.

This isn't just about whether or not he nibbled on her ear after she asked him not to. He threatened her life with his actions, as well as precariously put her into a horrible moral quandary had he impregnated her.

He took control of her body away from her with his actions. How is that not sexual assault/rape?

Not only pregnancy - also STDs. Which can apply to anyone having sex (such as removing a condom during gay sex, for example).

Issue to me is that person A said they didn't want to take the risk, and person B disregarded their stated wishes, putting them at a risk they said they did not want. Person A consented to the sex, but not to the risks that went with unprotected sex. That strikes me as behaviour that ought to be subject to criminal sanctions if some sort, though I admit it doesn't fit easily in the ordinary meaning of sexual assault, which usually concerns having sex without consent.

I would have no problem making it criminal behaviour under a different heading, like reckless endangerment. The severity of which could be increased to done sort of malicious endangerment if, for example, the condom removing person B knew they had a STD. There have been cases like that, of evil people who got AIDS and then deliberately set out to infect others by having unprotected sex with them - though I can't remember off the top what crime they were charged with when caught.

aggravated sexual assault, which is conduct that endangered the victim's life.

[crazy canuck]

It is an interesting issue.  The sexual act was consented to.  But I think that consent had with it the condition of wearing a condom.

Initial consent is not agreement to everything that might subsequently happen.  Consent can be withdrawn and consent for something beyond what was consented to needs to be obtained.  I think the onus is to ensure ongoing consent is obtained.  Normally this won't be a problem.  But it seems to me that taking off the condom is a pretty bright line.

[grumbler]

From the quote in the opening post it's not clear to me exactly what happened, so it's hard to say much about that specific case. Did he penetrate her without a condom?

Apparently not.  He seems to have removed the condom in order to ejaculate on her body.  At worst this seems to me to be what in Virginia is called Fourth Degree Sexual Assault, a misdemeanor (though a Class A one, the most severe).

[crazy canuck]

From the quote in the opening post it's not clear to me exactly what happened, so it's hard to say much about that specific case. Did he penetrate her without a condom?

Apparently not.  He seems to have removed the condom in order to ejaculate on her body.  At worst this seems to me to be what in Virginia is called Fourth Degree Sexual Assault, a misdemeanor (though a Class A one, the most severe).

It is not clear when he took it off.  What is clear is he was told to keep it on.

[grumbler]

It is not clear when he took it off.  What is clear is he was told to keep it on.

It isn't clear-clear, but she would have been able to see whether he had a condom on when he withdrew after the face-to-face sex.  If she has evidence that he penetrated her without a condom, then that becomes a much more serious case for him, because he knew she was not on birth control and was depending on the condom for her own protection.

[crazy canuck]

It is not clear when he took it off.  What is clear is he was told to keep it on.

It isn't clear-clear, but she would have been able to see whether he had a condom on when he withdrew after the face-to-face sex.  If she has evidence that he penetrated her without a condom, then that becomes a much more serious case for him, because he knew she was not on birth control and was depending on the condom for her own protection.

It seems they continued intercourse after she turned over based on her question and his comment that he only had it off for a little while.  But lets put the fact pattern of unprotected intercourse aside as I think we all agree that would be serious.

Assuming he pulled it off in order to ejaculate on her,  I still think she did not consent to that act.  She told him to keep the condom on. 

[DGuller]

I don't think this is a trend outside of the US, so it's not really relevant outside of that jurisdiction. And honestly, the answer there is to push back against the registries and their implementation, rather than condoning "lesser" offences.

Obviously the answer is to push back against the registries for this and many more reasons, but that is never going to happen.  There is no political way to eliminate sex offender registries, it's not exactly an issue to campaign on, and the Supreme Court already greenlighted them a long time ago.  Some people really do enjoy dealing out endless cruelty in the name of justice. 

Taking the reality of the situation as it exists, it seems like the best way to work around it is to not expand the definition of sexual assault without a very compelling reason.  I also don't think that being conservative with criminalizing some conduct condones it, not everything that's not illegal is condoned.

[grumbler]

Assuming he pulled it off in order to ejaculate on her,  I still think she did not consent to that act.  She told him to keep the condom on.

Yes.  That's been my position since response #2 of this thread.

[crazy canuck]

Assuming he pulled it off in order to ejaculate on her,  I still think she did not consent to that act.  She told him to keep the condom on.

Yes.  That's been my position since response #2 of this thread.

Then we are in complete agreement.

Stand back and watch DGuller keel over.

[Jacob]

WTF just happened?

[crazy canuck]

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

As an aside, that is actually a very interesting legal question.  It is an assault; however there is a Volenti defence.  To summarize a first year tort lecture into one sentence - the victim voluntary assumed the risk that they might get hit in that way. This comes up now and then in law suits against NHL players who injure other players during games, and the question of what risks are voluntarily assumed by stepping on to the ice becomes very interesting.





 

[alfred russel]

I think that the much more important point is that condoms suck.

[Berkut]

I think ejaculating on someone during sex, absent them specifically saying not to, might be a dickish move, but does not rise to level of assault. Or even close to it.

I mean, its gross at worst assuming you happen to find that unpleasant.

Hell, I've had women...make a mess on me during sex without asking my permission. I could not even imagine thinking I was assaulted.

Actually....I think even doing so even if they asked you not to is still not criminal - just asshole.

There is an entire set of actions around sex that I don't think we need to freaking pass a bunch of laws around.

If someone said "come on my face" and it gets in their hair, is that a crime because they didn't say to get it in their hair?

Vice versa?

Its sex. Its kind of messy by its nature.

If he was having consensual sex with her from behind, and she told him it had to be with a condom on, I could see someone thinking that means during intercourse, but not necessarily after it. AGAIN, not saying that is ok, just that it isn't criminal.

Again - its an asshole move to take it off and do that simply because A) You don't know her well enough to know if she is ok with that, and B) You are doing something where she cannot know at that point whether she can trust that you did in fact take it off after the intercourse. Being very clear about that is just being a basic decent human being, especially with someone the first time.

But criminal? Seems like that's a tough charge to make stick. If you go by the basic standard of "beyond a reasonable doubt" then there is clearly reasonable doubt as to whether he had intercourse with without the condom on.

Of course, if he did and that was clearly proven, then I think he has absolutely done something potentially illegal.

[crazy canuck]

The problem with your argument is she did specifically tell him to keep his condom on.  I am not sure how one could reasonably infer that she was consenting to be ejaculated on.

That is very different from someone consenting to a man ejaculating on them.