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

[Sheilbh]

Yeah - I think the English court basically summarised Assange's argument on the condom point as: "It was therefore submitted that in the present case, as AA had consented to sexual intercourse, and as that was the nature of the relevant act, it did not matter that she had consented only on the basis that he used a condom, as that did not change the nature of the act. It was accepted on Mr Assange' s behalf that this contention might not be one contemporary society would readily understand or consider justifiable, but Parliament had enacted the law in those terms and the duty of the courts was to apply the law."

Needless to say they disagreed on that interpretation of the law.

[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.

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.

Depending on the circumstances, yes.

Okay, you agree to have sex, but your partner says "kissing is gross.  No kissing".  Mid-way through sex you kiss your partner anyways.  Should that be charged as sexual assault?  I don't think so.

[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.

Depending on the circumstances, yes.

Okay, you agree to have sex, but your partner says "kissing is gross.  No kissing".  Mid-way through sex you kiss your partner anyways.  Should that be charged as sexual assault?  I don't think so.

See, you are bringing up an example of something that is usually considered common and "normal", but consent is consent regardless of what it's for. Replace kissing in your example with anal penetration or sadistic whipping (both things that people can engage in during sex), and try again.

[Berkut]

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.

Depending on the circumstances, yes.

Okay, you agree to have sex, but your partner says "kissing is gross.  No kissing".  Mid-way through sex you kiss your partner anyways.  Should that be charged as sexual assault?  I don't think so.

I had this basically happen, as I described earlier.

I guess I should be in jail now as a predator.

Instead we both laughed a little and screwed each other brains out instead, and still do on occasion.

Probably because we watch so much porn?

[Jacob]

Depending on the circumstances, yes.

Okay, you agree to have sex, but your partner says "kissing is gross.  No kissing".  Mid-way through sex you kiss your partner anyways.  Should that be charged as sexual assault?  I don't think so.

So consent contingent on respecting a set of boundaries is the same as blanket consent, and the boundaries are irrelevant? Or are there particular types of boundaries or conditions where disregarding them does in fact constitute sexual assault in your view?

Say, A agrees to give B a handjob. Is there no sexual act that B can inflict on A against their explict wishes that would constitute sexual assault in your view?

[Solmyr]

Whether it's worth charging someone with a crime certainly can depend on how severely the other person was affected - a single kiss by mistake won't harm someone too much (probably), but if you French kiss someone for ten minutes despite them saying no beforehand, then it's sexual assault. And generally speaking, people should rather learn to respect consent instead of offering explanations of how some violation of consent or another was "totally harmless and not worth the courts' time".

[Berkut]

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.

Depending on the circumstances, yes.

Okay, you agree to have sex, but your partner says "kissing is gross.  No kissing".  Mid-way through sex you kiss your partner anyways.  Should that be charged as sexual assault?  I don't think so.

See, you are bringing up an example of something that is usually considered common and "normal", but consent is consent regardless of what it's for. Replace kissing in your example with anal penetration or sadistic whipping (both things that people can engage in during sex), and try again.

Hence the "depending on circumstances".

That is the entire point. It DEPENDS ON THE CIRCUMSTANCES.

There is no "no consent equal sexual assault" hard and fast rule. And reasonable people can reasonably disagree where some particular act goes from "That's an honest mistake, no harm no foul" to "That's an asshole thing to do, and probably means we aren't repeating" to "That's a REALLY fucking asshole thing to do I am telling my friends about" to "MOTHERFUCKER WTF! I am calling the cops!" to outright rape.

And having the discussion about it is not evidence that you think consent doesn't matter or isn't necessary, no matter how much porn you watch. And suggesting that having the conversation is indicative of some posters disdain for obtaining consent is fucking contemptible. Only slightly less contemptible is how accepting everyone is of someone who would do that.

[Solmyr]

My view is, people should learn to err on the side of caution when it comes to consent, rather than trying to make a scale on how harmless some sexual activity is or assuming someone would not be greatly affected by it. Even a simple unwanted kiss could be traumatic to someone.

[Berkut]

My view is, people should learn to err on the side of caution when it comes to consent, rather than trying to make a scale on how harmless some sexual activity is or assuming someone would not be greatly affected by it. Even a simple unwanted kiss could be traumatic to someone.

Indeed. It is a fraught interaction, and almost always complicated by passion and emotion.

It is worthy of great care and consideration.

The question however, is what happens when that breaks down? Either willfully, because some people are jerks, or because sometimes people just don't communicate well, and make mistakes or mis-interpret things in a complex situation where what people want can and will change from moment to moment?

It's easy to just say "OMG no consent! Rape!" But not very useful in the actual world where society has to make hard choices about how to make objective laws and responses to subjective experiences.

[Barrister]

My view is, people should learn to err on the side of caution when it comes to consent, rather than trying to make a scale on how harmless some sexual activity is or assuming someone would not be greatly affected by it. Even a simple unwanted kiss could be traumatic to someone.

Absolutely.  But that's more just a matter of good manners.

I've had say a victim of crime crying after court.  I will ask them if it's okay for me to hug them before doing so in order to try and comfort them.

But some things that are definitely bad manners don't deserve to be charged as crimes.

[Sheilbh]

But I suppose isn't the depending on the circumstance depending on that person - the complainant - rather than for the law necessarily. Obviously it's up to that person and we expect a degree of prosecutorial discretion.

In the UK the way it works is basically you have four key offences: rape (penetration with a penis); assault by penetration (with something else); sexual assault; and causing a person to engage in sexual conduct without consent. All of those rely on consent but there's additional presumption of a lack of consent if there is deception about the nature or purpose of the act (or if they catfished them) basically.

But in that framework unwanted kissing (this came up a lot during me too revelations in the UK) can be sexual assault.

There may well be cases where the complainant doesn't feel it's worth going to the police because it was a really minor thing or where there's some prosecutorial discretion or the jury doesn't think it's a crime. But just because those things can happen doesn't mean you try and write all of those circumstances into the law, because I think it's less of a concern that someone gets done for sexual kissing than that someone gets off for turning one type of sexual encounter into something their partner didn't consent to.

I think that sort of distinction is broadly what the courts and the justice system are for. It's so you don't have to write perfect laws that will be zealously applied to all potential offences in all circumstances - that might be a model, but I don't think it's that the one that we have.

[PDH]

I liked this forum better when all threads ended up in the Civil War, not a civil war.

[Jacob]

My view is, people should learn to err on the side of caution when it comes to consent, rather than trying to make a scale on how harmless some sexual activity is or assuming someone would not be greatly affected by it. Even a simple unwanted kiss could be traumatic to someone.

Yeah I agree.

Alternately, understand that if they're relying on implied consent that they me incorrect and if they are, then the other person has recourse to a variety of actions in response.

That said, I do think there's a scale of severity of impact, a scale of egregiousness of particular acts, and room for considering misunderstandings. But the bottom line is that engaging in a sexual act to which the other party does not consent is sexual assault.

In reality, of course, people engage in all kinds of sexual activity without explicitly discussing consent based on prior experiences, implied consent, and other factors... which is fine. As long as the other party is okay with what's happening, you're fine... but you're running a bit of a risk and have to trust your partner if you do so.

[Solmyr]

My view is, people should learn to err on the side of caution when it comes to consent, rather than trying to make a scale on how harmless some sexual activity is or assuming someone would not be greatly affected by it. Even a simple unwanted kiss could be traumatic to someone.

Indeed. It is a fraught interaction, and almost always complicated by passion and emotion.

It is worthy of great care and consideration.

The question however, is what happens when that breaks down? Either willfully, because some people are jerks, or because sometimes people just don't communicate well, and make mistakes or mis-interpret things in a complex situation where what people want can and will change from moment to moment?

It's easy to just say "OMG no consent! Rape!" But not very useful in the actual world where society has to make hard choices about how to make objective laws and responses to subjective experiences.

It's also equally easy for the other side to argue "OMG it was an honest mistake, that person I was having sex with did not communicate well!" And then everyone would use that defense to get off scot free (as, indeed, is the case right now, because the percentage of rape or sexual assault convictions is EXTREMELY low).

[Solmyr]

My view is, people should learn to err on the side of caution when it comes to consent, rather than trying to make a scale on how harmless some sexual activity is or assuming someone would not be greatly affected by it. Even a simple unwanted kiss could be traumatic to someone.

Yeah I agree.

Alternately, understand that if they're relying on implied consent that they me incorrect and if they are, then the other person has recourse to a variety of actions in response.

That said, I do think there's a scale of severity of impact, a scale of egregiousness of particular acts, and room for considering misunderstandings. But the bottom line is that engaging in a sexual act to which the other party does not consent is sexual assault.

In reality, of course, people engage in all kinds of sexual activity without explicitly discussing consent based on prior experiences, implied consent, and other factors... which is fine. As long as the other party is okay with what's happening, you're fine... but you're running a bit of a risk and have to trust your partner if you do so.

Agreed with all of this. It's best to never assume something is okay in a sexual context no matter how innocent it seems to you.