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

[Barrister]

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?

That's a very absolutist view when I started the whole thing with "Depending on the circumstances".

I think there's probably some room for "testing boundaries" within an otherwise consensual encounter.  Like the kissing example I used.  But if the person repeatedly went to kiss their partner despite repeated insistence that not happen, then probably that does feel more like something perhaps more suited to the courts.

But that's also within the context of an otherwise consensual encounter.  If your partner says "I've had it!  I don't want to have sex with you"  then no means no.

[Solmyr]

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?

That's a very absolutist view when I started the whole thing with "Depending on the circumstances".

I think there's probably some room for "testing boundaries" within an otherwise consensual encounter.  Like the kissing example I used.  But if the person repeatedly went to kiss their partner despite repeated insistence that not happen, then probably that does feel more like something perhaps more suited to the courts.

But that's also within the context of an otherwise consensual encounter.  If your partner says "I've had it!  I don't want to have sex with you"  then no means no.

Actually, at least in the BDSM subculture, "testing boundaries" is also a thing that should be consented to. Incidentally, kinky people tend to be more mindful of consent compared to vanilla people, probably because they engage in all sorts of activities that can go badly wrong and land them in jail if not planned beforehand.

[Sheilbh]

Yeah - for me the issue within a sexual encounter isn't necessarily that you only do what's kind of been pre-agreed. It's more you don't do what you're told not to do (unless, of course that's your kink and no-one's using a safe word ).

[Barrister]

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?

That's a very absolutist view when I started the whole thing with "Depending on the circumstances".

I think there's probably some room for "testing boundaries" within an otherwise consensual encounter.  Like the kissing example I used.  But if the person repeatedly went to kiss their partner despite repeated insistence that not happen, then probably that does feel more like something perhaps more suited to the courts.

But that's also within the context of an otherwise consensual encounter.  If your partner says "I've had it!  I don't want to have sex with you"  then no means no.

Actually, at least in the BDSM subculture, "testing boundaries" is also a thing that should be consented to. Incidentally, kinky people tend to be more mindful of consent compared to vanilla people, probably because they engage in all sorts of activities that can go badly wrong and land them in jail if not planned beforehand.

YOu know what, I've prosecuted my fair share of sexual assaults, but never any involving the BDSM community.

I think I would agree that before you start tieing someone up and whipping them you'd better get some pretty damn clear consent.

[Solmyr]

I think people here have mostly been talking about the same thing, just from different angles, at least in the general sense. I still think that the case that started this whole thread, when a guy took off his condom and ejaculated on his partner despite having been explicitly told to keep the condom on (presumably for the entire duration of sex, including the ejaculation), can be classified as sexual assault.

[Solmyr]

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?

That's a very absolutist view when I started the whole thing with "Depending on the circumstances".

I think there's probably some room for "testing boundaries" within an otherwise consensual encounter.  Like the kissing example I used.  But if the person repeatedly went to kiss their partner despite repeated insistence that not happen, then probably that does feel more like something perhaps more suited to the courts.

But that's also within the context of an otherwise consensual encounter.  If your partner says "I've had it!  I don't want to have sex with you"  then no means no.

Actually, at least in the BDSM subculture, "testing boundaries" is also a thing that should be consented to. Incidentally, kinky people tend to be more mindful of consent compared to vanilla people, probably because they engage in all sorts of activities that can go badly wrong and land them in jail if not planned beforehand.

YOu know what, I've prosecuted my fair share of sexual assaults, but never any involving the BDSM community.

I think I would agree that before you start tieing someone up and whipping them you'd better get some pretty damn clear consent.

Yes, and just because you agreed on a whipping doesn't mean you can then also slap them in the face or start choking them. Consent needs to be very specific, and a lack of a no does not mean yes.

[Admiral Yi]

1. Discuss birth control/STD prevention.

2. Explicit consent for anything up the ass.

3.  Everything else fair game.

[Barrister]

Yes, and just because you agreed on a whipping doesn't mean you can then also slap them in the face or start choking them. Consent needs to be very specific, and a lack of a no does not mean yes.

Even there...

You've consented to "kinky" sex and agree you're going to be tied up and whipped.  You setup a safe word, and agree that you won't be choked.  Mid way through your partner starts choking you.  So say the safe word and the choking stops.

I just don't think that's something the courts need to get involved in.  I don't think a prosecution would be "in the public interest".  That person is an asshole, but I don't think they need to be charged.

[The Brain]

What's up with all you kinky people?

[Sheilbh]

YOu know what, I've prosecuted my fair share of sexual assaults, but never any involving the BDSM community.

I think I would agree that before you start tieing someone up and whipping them you'd better get some pretty damn clear consent.

There's a really famous BDSM case in England and Wales from the early 90s. Basically the polce decided to launch a nationwide investigation into same-sex BDSM because homophobia and arrested about 100 men all told.

There was a test case (of the most extreme stuff) that was prosecuted GBH and ABH and it went to the Law Lords whether consent was a defence. They decided it wasn't (3-2).

I mainly remember it for how ridiculous and often homophobic the judgements (Lord Templeman: "Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing." Lord Jauncey: "Furthermore, the possibility of proselytisation and corruption of young men is a real danger" Lord Lowry: "Sado-masochistic homosexual activity cannot be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society. A relaxation of the prohibitions in sections 20 and 47 can only encourage the practice of homosexual sado-masochism and the physical cruelty that it must involve (which can scarcely be regarded as a "manly diversion") by withdrawing the legal penalty and giving the activity a judicial imprimatur.") and even the dissents were pretty bad (Lord Mustill is correct, if judgemental: "In my opinion it should be a case about the criminal law of private sexual relations, if about anything at all ... [leaving aside] repugnance and moral objection, both of which are entirely natural but neither of which are, in my opinion, grounds upon which the court could properly create a new crime").

I don't think it's ever actually been overturned but, needless to say, the police have stopped spending their time raiding BDSM clubs.

[The Brain]

YOu know what, I've prosecuted my fair share of sexual assaults, but never any involving the BDSM community.

I think I would agree that before you start tieing someone up and whipping them you'd better get some pretty damn clear consent.

There's a really famous BDSM case in England and Wales from the early 90s. Basically the polce decided to launch a nationwide investigation into same-sex BDSM because homophobia and arrested about 100 men all told.

How many of those were Tory MPs?

[Sheilbh]

The investigation did end suddenly

[Barrister]

Our Supreme Court also decided in the early 90s that for public policy you can not consent to the infliction of bodily harm.  That was in the context of a consensual bar fight where the victim died.

I don't know if it's ever been applied in a BDSM case.

[The Brain]

Our Supreme Court also decided in the early 90s that for public policy you can not consent to the infliction of bodily harm.  That was in the context of a consensual bar fight where the victim died.

I don't know if it's ever been applied in a BDSM case.

Does harm include inflicting pain in a way that leaves permanent marks?

[Jacob]

Even there...

You've consented to "kinky" sex and agree you're going to be tied up and whipped.  You setup a safe word, and agree that you won't be choked.  Mid way through your partner starts choking you.  So say the safe word and the choking stops.

I just don't think that's something the courts need to get involved in.  I don't think a prosecution would be "in the public interest".  That person is an asshole, but I don't think they need to be charged.

Well yeah, that's the point of the safe word. And I think it's extremely unlikely that the courts would get involved, because neither partner would bring the courts in. And if one of them did, then it would hinge on whether the safe word was in fact respected.

But if they say the safe word and the person doing the choking doesn't stop, well then perhaps the courts should get involved. Or, perhaps, if the safeword is used and they're told to stop and they respond by saying "just give me 30 seconds" and ejaculate on your face before they stop choking you, then perhaps the courts should in fact get involved.