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

[crazy canuck]

I think CC needs a timeout, in all honesty.  If we can't discuss issues here without being safe from insinuations of being a rapist, we should just shut this forum down.

The fact that you can make that kind of characterization of my posts is a good example of the problem here.

[Jacob]

I concur with CC.

[Barrister]

So lets go back to what you wrote.  "If he took the condom off after he pulled out so he could ejaculate on her body I don't think it was sexual assault/rape. It might be something but not sexual assault/rape.

If he did it and was in her again than it was sexual assault/rape. I don't think anybody is arguing otherwise on that front."

You said it would be something, but not sexual assault.  For it to not be sexual assault there would have to be consent.  So I asked you how you were concluding there had been consent to ejaculating on her body - assuming he did not actually engage in intercourse with the condom off which we all agree would be sexual assault.

There could be an interesting discussion about whether there was consent and that is why I asked you the question.   

I think the argument would be that given there was general consent to sexual activity, even if not to this one specific act, that the matter is not beyond de minimis and therefore should not be prosecuted.

Let's say you agree to engage in a fistfight, but in the midst of that fistfight your opponent knees you in the groin.  Should that be an assault charge?

[grumbler]

I concur with CC.

And I concur with DG.  When CC summarizes someone's argument and concludes that "I wonder if watching porn has so warped men's understanding of sex that you have concluded consent is not necessary," that's WAYYY over the line.  Accusing someone of concluding that "consent is not necessary" is accusing them of being at least potentially a rapist (and a sociopath to boot).

CC's always been too fond of the ad hominem argument, but when that's pretty much all he has left, he should take a timeout.

[Berkut]

I concur with CC.

Wow.

You are cool with accusing fellow posters of "...you have concluded consent is not necessary". Note that this isn't in respect to a theoretical case, but directed at the actual posters and their views about sex and consent. Apparently motivated by porn, and you "concur" with his coming to this conclusion because of, your know, porn.

That's surprising, coming from you.

[Valmy]

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?

If he took the condom off after he pulled out so he could ejaculate on her body I don't think it was sexual assault/rape. It might be something but not sexual assault/rape.

If he did it and was in her again than it was sexual assault/rape. I don't think anybody is arguing otherwise on that front.

If he did, how are you arriving at the conclusion that she consented to have his sperm sprayed all over her back when she specifically told him to keep the thing on.

Is there some basis to imply consent for him to remove it for some other purpose?

Did I arrive at that conclusion I thought I said it was probably a crime of some kind.

Also you have to remember the absolutely barbaric nature of our criminal justice system, somebody would have to fuck me up pretty fucking bad before I would want anybody to endure that horror show. Spewing on somebody is pretty gross and awful thing to do but sending them to suffer under brutal conditions for months and then be a pariah for the rest of their lives seems like disproportionate punishment. But it's Canada so maybe getting a sentence like that is not what it would be here.

Obviously if he did put her in danger of getting pregnant or get a STD that is different.

So lets go back to what you wrote.  "If he took the condom off after he pulled out so he could ejaculate on her body I don't think it was sexual assault/rape. It might be something but not sexual assault/rape.

If he did it and was in her again than it was sexual assault/rape. I don't think anybody is arguing otherwise on that front."

You said it would be something, but not sexual assault.  For it to not be sexual assault there would have to be consent.  So I asked you how you were concluding there had been consent to ejaculating on her body - assuming he did not actually engage in intercourse with the condom off which we all agree would be sexual assault.

There could be an interesting discussion about whether there was consent and that is why I asked you the question.   

It is also clear that a number in the peanut gallery fail to understanding the necessary link between consent and this not being a sexual assault.  And the ones who cry most about Ad Hom attacks are the first to pull them out.  Such is Languish.

Well maybe I lack the necessary bloodthirstyness and lust for vengeance required to be a lawyer. If he did a gross thing without her consent then sure put him in jail for a few weeks or days and make him pay a fine, maybe some probation whatever. Scare him straight. If he did put her in danger then that is different.

I just am hesitant to have somebody suffer years of inhuman and brutal treatment for years unless absolutely necessary. If somebody assaulted or robbed from me if it was something I could walk away from, I would have to think hard about reporting them just for that reason. I would have to be pretty sure they would continue to do so in the future to others.

[Solmyr]

I think the argument would be that given there was general consent to sexual activity, even if not to this one specific act, that the matter is not beyond de minimis and therefore should not be prosecuted.

Let's say you agree to engage in a fistfight, but in the midst of that fistfight your opponent knees you in the groin.  Should that be an assault charge?

Yes? You agreed to a fistfight, not to be hit in whatever ways the other guy thinks of.

[Sheilbh]

Yeah and your consent can be conditional. If you said okay but only if you use a condom or okay but don't ejaculate on me - and the other person deliberately ignores that then I think that's a violation of the consent on which the sexual act is based.

From my understanding of UK law the condom one would be rape and the ejaculation would be sexual assault.

Obviously it may be that you generally consent to sexual activity and change your mind - that initial consent doesn't mean the other person can carry on regardless. Similarly you may consent at the start and then the other person does something does something your're not okay with and you can say "no" at that point and if they still do it it's in violation of your consent - the example that springs to mind is if they try anal, you say no and they proceed.

I'm not quite sure that we need to go to analogies of fist fights or other things when we can just examples of sexual conduct.

Edit: And for what it's worth in UK law, under the Sexual Offences Act 2003 - both the ejaculation (the case here was actually someone ejaculating in their partner when they'd been told not to) and the removing the condom (this was the Assange extradition case) are criminal under UK law.

[The Brain]

Did Assange penetrate without a condom?

[Barrister]

I think the argument would be that given there was general consent to sexual activity, even if not to this one specific act, that the matter is not beyond de minimis and therefore should not be prosecuted.

Let's say you agree to engage in a fistfight, but in the midst of that fistfight your opponent knees you in the groin.  Should that be an assault charge?

Yes? You agreed to a fistfight, not to be hit in whatever ways the other guy thinks of.

Why should we waste the court's time trying to police exactly what is and isn't allowed in a fist fight?  If you're dumb enough to agree to a fist fight up to a certain point you deserve what you get.

[The Brain]

I think it's obvious that context should matter to the law. If you're in a sexual situation with someone and you grab their ass without having asked first if it's OK, that's not the same thing as grabbing some stranger's ass on the bus without having asked first.

[Sheilbh]

I think it was an aggravating factor in Sweden (I think the victim was asleep).

Assange argued that if the assault described in the Swedish arrest warrant wasn't rape and if it had been fairly and accurately described it would not have constituted rape. I think on the first point the court basically the Swedish court's considered it as a matter of Swedish law and issued a European arrest warrant which was kind of decisive, but even if that was incorrect the assault would constitute rape under British law too (mainly because she was asleep) but also on the condom point:

It would plainly be open to a jury to hold that if AA had made clear that she would only consent to sexual intercourse if Mr Assange used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom ..... His conduct in having sexual intercourse without a condom in circumstances where she had made clear she would only have sexual intercourse if he used a condom would therefore amount to an offence under the Sexual Offences Act 2003....

[Solmyr]

I think the argument would be that given there was general consent to sexual activity, even if not to this one specific act, that the matter is not beyond de minimis and therefore should not be prosecuted.

Let's say you agree to engage in a fistfight, but in the midst of that fistfight your opponent knees you in the groin.  Should that be an assault charge?

Yes? You agreed to a fistfight, not to be hit in whatever ways the other guy thinks of.

Why should we waste the court's time trying to police exactly what is and isn't allowed in a fist fight?  If you're dumb enough to agree to a fist fight up to a certain point you deserve what you get.

So, uh, are you really arguing that if you are "dumb enough" to agree to have sex, you deserve what you get, and the courts shouldn't waste time with it? Otherwise I'm not sure what your analogy is about.

[Barrister]

I think it was an aggravating factor in Sweden (I think the victim was asleep).

Assange argued that if the assault described in the Swedish arrest warrant wasn't rape and if it had been fairly and accurately described it would not have constituted rape. I think on the first point the court basically the Swedish court's considered it as a matter of Swedish law and issued a European arrest warrant which was kind of decisive, but even if that was incorrect the assault would constitute rape under British law too (mainly because she was asleep) but also on the condom point:

It would plainly be open to a jury to hold that if AA had made clear that she would only consent to sexual intercourse if Mr Assange used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom ..... His conduct in having sexual intercourse without a condom in circumstances where she had made clear she would only have sexual intercourse if he used a condom would therefore amount to an offence under the Sexual Offences Act 2003....

Googled and found this decent summary of the allegations against Assange:

https://www.vox.com/identities/2019/4/12/18306901/julian-assange-arrest-wikileaks-rape-sweden-embassy

The first allegation could have been rape all by itself: Assange was staying at her house, then starts touching her and taking her clothes off.  She tries to fend him off, but then gives in.  She insists on a condom but then says Assange did something to the condom so that it broke.

Second allegation was with a different woman.  She insisted on a condom, he refused, so they went to sleep.  Later on they woke u and had sex with a condom.  In the morning she woke up with Assange inside her, with no condom.

[Admiral Yi]

Maybe it just slipped in by accident.