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

[Sheilbh]

Going back to the original case.

Lets assume these are the actual facts of what actually happened.

A and B mutually decided to have sex.
A tells B that a condom is a pre-condition to the act of intercourse. They engage in other sexual activity (kissing, fondling, even oral sex between them) without the condom.
B and A are ready for intercourse, and B complains that he does not like condoms - do we really need to use one?
A says "Yes, non-negotiable, stop bitching and put the thing on and screw me already!"
B puts on condom, they have intercourse.
B is about to orgasm, and pulls out of A, removes condom, and ejaculates on A. Or maybe B even realizes he will not orgasm with it on, so pulls out, takes the condom off, and finishes on A.

Let's assume that A knows that the condom was removed after penetration, so there is no question of whether or not B was inside A without a condom. Take that question off the table.

At this point, the potential "crime" is that B ejacualted on A. Now, A never said "Don't cum on me, I think that's gross!". But A certainly could have thought that was implied in the overall "Use the condom for intercourse!" instruction. B could have thought "Well, I did as asked, and used the condom for intercourse, but we did lots of other stuff without it, so what's the problem?"

B might be guilty of not being very considerate, and A could genuinely have found this to be really, really fucking objectionable because they happen to really really not like having cum on them.

But I don't think any crime was committed. Nothing here rises to the level of "Lets send B to jail for 6 months!", and this is NOT an example of how hard it is to prosecute sexual assault.

Variations on this encounter happen all the time, in various ways, between two people having sex for the first or fifth time with each other.

What say everyone - was B ejaculating on A without *explicit* permission a crime?

No - not in the UK and I don't think it should be.

As I say in the UK (which I know - but also I think has quite a well-drafted law on this) you've got those four sexual crimes which are related to acts. All of the offences in some way or other involve "consent".

In general consent has it's normal day-to-day meaning and it's generally assessed as a "reasonable belef" in consent. But there are also circumstances which are slighty different where the law provides for presumptions about consent. The relevant ones here are if the defendant intentionally deceives the complainant about the sexual act or its purpose; or the defendant intentionally induces consent by impersonating another person known to the complainant.

That's quite limited in two ways. They have to be lying about the act itself - so for example it doesn't cover "disingenuous blandishments or common or garden lies" which might well be persuasive in getting someone into bed, but they're not relevant. They're not about the act itself. And obviously it needs to be deliberate deceit not just an accident or mistake. But if that's what the court finds then it's considered conclusive on consent. The reasoning behind that is if you are intentionally deceiving or intentionally inducing someone to do an act, then you can't believe that they're okay with it and if the person was actually okay with it they wouldn't have made the criminal complaint.

So your example isn't caught because B doesn't "deliberately deceive" A about the act. A never said don't ejaculate on me, B never said they wouldn't.

But if A said - I'm fine with sex but don't cum on me, which B is fine with but B then does cum on A then that could be sexual assault. If B was wearing a condom they would have to remove it to ejaculate on A which I think would probably be indicative enough of deliberate deception about the act (it won't involve ejaculation on A; it did).

In the UK there was actually a case on ejaculation but the other way round. It was in the context of an abusive relationship and there were lots of incidents. The woman didn't want another kid, the man didn't wear condoms because he didn't like them - so they agreed to using withdrawal as their contraception method (which it isn't - but there we are). So both people knew that she didn't consent to him ejaculating inside of her.

The issue was there was a sexual encounter that was within the definition of consensual, and he told her that we would ejaculate insider her "because you are my wife and I'll do it if I want". She actually became pregnant. The court's basic view in the end was this was rape:

In law, the question which arises is whether this factual structure can give rise to a conviction for rape. Did the claimant consent to this penetration? She did so, provided, in the language of s.74 of the 2003 Act, she agreed by choice, when she had the freedom and capacity to make the choice. What Assange underlines is that "choice" is crucial to the issue of "consent", and indeed we underline that the statutory definition of consent provided in s.74 applies equally to s.1(1)(c) as it does to s.1(1)(b). The evidence relating to "choice" and the "freedom" to make any particular choice must be approached in a broad commonsense way. If before penetration began the intervener had made up his mind that he would penetrate and ejaculate within the claimant's vagina, or even, because "penetration is a continuing act from entry to withdrawal" (see s.79(2) of the 2003 Act) he decided that he would not withdraw at all, just because he deemed the claimant subservient to his control, she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly her consent was negated. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuation of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape.

It's worth nothing in the same judgment actually addressed what I think you're talking about:

We must emphasise that we are not addressing the situation in which sexual intercourse occurs consensually when the man, intending to withdraw in accordance with his partner's wishes, or their understanding, nevertheless ejaculates prematurely, or accidentally, within rather than outside his partner's vagina. These things happen. They always have and they always will, and no offence is committed when they do. They underline why withdrawal is not a safe method of contraception. Equally we are not addressing the many fluctuating ways in which sexual relationships may develop, as couples discover and renew their own levels of understanding and tolerance, their codes of communication, express or understood, and mutual give and take, experimentation and excitement. These are intensely private matters, personal to the couple in question.

Also this whole conversation just makes me think of "I May Destroy You" - which is well worth a watch and is a really, really good show. But a large part of it is exploring consent.

Edit: As I've said before the point isn't that you need explicit permission for every act, but if you've been told explicitly not to do something then the consent to that act is conditional.

[merithyn]

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.

I completely agree with this.

You all know where I stand on consent, but this is so nuanced as to be impossible to tease out. And I think the risk to the people involved matters. BB can say that pregnancy doesn't count as a risk because mortality rates are low, but pregnancy does a lot more to a woman's body than just killing it. That's a risk that should be considered. So is STDs, or physical trauma.

Kissing someone after being told not to isn't likely to cause any of those. But there are other sex acts that can - and do. And I think that when we're talking about nuances, we need to include that specific nuance. Does that specific act cause a risk of bodily harm? If so, then it's not just "did they just not get explicit consent". Instead, it now becomes something a bit more serious and worth the discussion that's ensuing.

[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.

I completely agree with this.

You all know where I stand on consent, but this is so nuanced as to be impossible to tease out. And I think the risk to the people involved matters. BB can say that pregnancy doesn't count as a risk because mortality rates are low, but pregnancy does a lot more to a woman's body than just killing it. That's a risk that should be considered. So is STDs, or physical trauma.

Kissing someone after being told not to isn't likely to cause any of those. But there are other sex acts that can - and do. And I think that when we're talking about nuances, we need to include that specific nuance. Does that specific act cause a risk of bodily harm? If so, then it's not just "did they just not get explicit consent". Instead, it now becomes something a bit more serious and worth the discussion that's ensuing.

Indeed.

This goes back to the basic point here - there is nuance, and the details matter, and that is why we have courts, because there is nothing nearly so cut and dried as "If there is no consent, then it is assault".

Hell, that doesn't even address the basic idea of what "consent" itself means - active consent ("You can do that") versus implied consent (I did not say you cannot do that). That difference alone encompasses an immense amount of interactions that themselves clearly have radically different conclusions based on the details.

Example: Two different sexual acts, both of which fall under the general category of "A did something that B did not say was ok".

A bites Bs nipple kind of hard. Not breaking skin or anything like that, but a definite light bite.  B did not say anything like "Oooh, bite my nipple!". There was no consent given, nor was there any consent explicitly denied.

I think everyone would agree this is not criminal. This is not assauly in the context of two people engaging in mutually consenting sex. Not everyone likes that, but lots of people do, and its not terribly unreasonable that one partner might do that in the act of exploring boundaries.

Second example (already menioned):

A shoves their dick on Bs ass without any preamble, discussion, or any particular reason to suspect that B might want or consent to that. I don't think reasonable people consider that to be within the bounds of normal expectations when engaged in sexual activity. IMO, that is something that B could consider assault. There is risk to B that has not been addressed, it fucking hurts A LOT very likely, and plenty of people irrespective of the risk and the pain simply don't like it at all, and A knew that.

Those two cases are both of a kind when it comes to the basic facts, but it requires the details to determine that one is just part of exploring, and the other is fucking rape.

[merithyn]

Going back to the original case.

Lets assume these are the actual facts of what actually happened.

A and B mutually decided to have sex.
A tells B that a condom is a pre-condition to the act of intercourse. They engage in other sexual activity (kissing, fondling, even oral sex between them) without the condom.
B and A are ready for intercourse, and B complains that he does not like condoms - do we really need to use one?
A says "Yes, non-negotiable, stop bitching and put the thing on and screw me already!"
B puts on condom, they have intercourse.
B is about to orgasm, and pulls out of A, removes condom, and ejaculates on A. Or maybe B even realizes he will not orgasm with it on, so pulls out, takes the condom off, and finishes on A.

Let's assume that A knows that the condom was removed after penetration, so there is no question of whether or not B was inside A without a condom. Take that question off the table.

At this point, the potential "crime" is that B ejacualted on A. Now, A never said "Don't cum on me, I think that's gross!". But A certainly could have thought that was implied in the overall "Use the condom for intercourse!" instruction. B could have thought "Well, I did as asked, and used the condom for intercourse, but we did lots of other stuff without it, so what's the problem?"

B might be guilty of not being very considerate, and A could genuinely have found this to be really, really fucking objectionable because they happen to really really not like having cum on them.

But I don't think any crime was committed. Nothing here rises to the level of "Lets send B to jail for 6 months!", and this is NOT an example of how hard it is to prosecute sexual assault.

Variations on this encounter happen all the time, in various ways, between two people having sex for the first or fifth time with each other.

What say everyone - was B ejaculating on A without *explicit* permission a crime?

As described here, no. There are a lot of assumptions on the facts of the case, though.

[Berkut]

As described here, no. There are a lot of assumptions on the facts of the case, though.

Absolutely - that was the idea, to remove the "Well, what happened??" part of the debate and get down to the actual principles around this particular fact case.

I think everyone pretty much agrees that if he stuck is bare dick inside her after she said not to, that is definitely assault.

[Jacob]

It just sounds so bizarre to have two people to decide to have sex and then be at such confusion about what they other would or would not permit.

Typically there is no such confusion, as you and I both know from personal experience. But it's probably worth it being on the lookout for such confusion, especially with a new partner.

From my experience (given Jacob decided to condescened to me by making his example about grindr)...

It wasn't intended to be condescending, please accept my apology. I was trying to avoid being heteronormative. It doesn't have to be about you at all

...there was alwas a base of stuff that was implied as acceptable and then if it was getting to say penile insertion there would be comments like 'do you want me to fuck you?' or 'will you suck it'? At the same time if one partner went to suck the other's dick and the other wasn't feeling it (for whatever reason), they would pull back up on the suckee or say something like 'Oh I'm not feeling like having my dick sucked.' People had (and I'd guess still have) the ability to speak and if something started to happen that they didn't want, they could say that / things like say fisting or watersports are not part of the basic package.

Yeah, that's how it's supposed to happen and that's what happens most of the time. And if you throw in the occasional "you good with this" if you're with someone, then I expect you're good. Conversely, if you go in with an attitude of "I'm going to get off the way I like and the other person is just an accessory that I mostly ignore except when convenient to me" you run a risk of crossing a line (still small, I expect, depending on what you're doing).

Only consent around kissing, I can recall, is someone saying 'I don't like to kiss/want to kiss' and that would always point out to me that it was time to leave/cut that activity short.

That's how it's supposed to work.

The kissing thing I think revolves more around someone repeatedly using "innocent kisses" to impose themselves on someone who is unwilling and unable to say no (i.e. where there's a power differential) or someone who catastrophically misjudged a situation (the other person is actually not interested at all and you thought they were).

I think the bottom line is something like this:

Can something even as innocent as kissing be used to sexually assault someone. I think the answer to that question is yes.

Is it reasonable to assume that in any sexual context that kissing is okay, unless clearly indicated otherwise? I think in something like 99.99% of cases the answer is also yes.

Is 100% legally clear and irrefutable and exhaustive conversations about consent about every little detail in sexual activities completely impractical and unrealistic to expect in real life? The answer there is also clearly yes, IMO.

You can deal with it by saying kissing is always innocent, and that 0.001% of people who are actually sexually assaulted via kissing will just have to toughen up (buttercup). Personally I don't think that's right.

Alternately, you can say that kissing can be sexual assault depending on context and expect consenting adults to negotiate ensuring that the context they're in is safe and consensual in a mutually satisfactory way, and leave the courts available for when something crosses that line. I believe in the current state of affairs, and I don't believe there's a massive number of cases where people are being done for kissing as sexual assault. Because by and large people can figure this stuff out, as you say. But when they can't and one of the parties considers it especially egregious, I think it's acceptable that there's a legal recourse.

I also wonder what this does to a sense of exploration, as in, you don't come to your first sexual encounters knowing exactly what you like nor do you want to be particpating in a Q&A session.

For sure, but a reasonable level of "that feels good" or "not like that" and responsiveness to non-verbal cues is probably a good idea, as you yourself have indicated.

[Solmyr]

The way this has been described, I am, in the views of many here, both the victim and the perpetrator of several acts of "sexual assault". And I am confident that if you told me that (as a "victim") I would laugh at the idea, and if you told my partners (when they were the "victim") they would find the idea ridiculous.

I think the fear of dismissing victims of sexual assault is so pervasive that it fosters such seemingly idiotic absolutism that we're seeing here (although like with many things of this nature, I think what people say publicly and what they believe in practice is different).  Any time you have a discussion where one side of the argument is a lot more constrained than the other one ultimately leads to this ratcheting dynamic.  You can never go wrong with "more consent required is better" in a discussion, but arguing the other side opens you up to implications of being a rapist.  When such a discussion goes on long enough, you will find that having a handjob without a signed and notarized 12 page contract will make you a very bad person.

I just think the delta between how this actually works in the actual world and how it is described by many here is just...bizarre.

In the actual world, if I meet a new person and we decide to have sexy times together, I certainly like to talk beforehand about what kinds of things we like and what kinds of things are absolutely no-no. And even while we engage in sexy times (which includes much more than just penetration), I occasionally will ask if the other person is okay, if something I do feels good, or if I can do this new thing that I just thought about. Communication about consent is ongoing and does not need to stop during sex, especially if you are unsure about something you want to do.

Of course, if I am having sexy times with a person I already know well and know what kinds of things they like, there doesn't need to be as much talking since I can trust them and assume implied consent about such things.

[Berkut]

The way this has been described, I am, in the views of many here, both the victim and the perpetrator of several acts of "sexual assault". And I am confident that if you told me that (as a "victim") I would laugh at the idea, and if you told my partners (when they were the "victim") they would find the idea ridiculous.

I think the fear of dismissing victims of sexual assault is so pervasive that it fosters such seemingly idiotic absolutism that we're seeing here (although like with many things of this nature, I think what people say publicly and what they believe in practice is different).  Any time you have a discussion where one side of the argument is a lot more constrained than the other one ultimately leads to this ratcheting dynamic.  You can never go wrong with "more consent required is better" in a discussion, but arguing the other side opens you up to implications of being a rapist.  When such a discussion goes on long enough, you will find that having a handjob without a signed and notarized 12 page contract will make you a very bad person.

I just think the delta between how this actually works in the actual world and how it is described by many here is just...bizarre.

In the actual world, if I meet a new person and we decide to have sexy times together, I certainly like to talk beforehand about what kinds of things we like and what kinds of things are absolutely no-no. And even while we engage in sexy times (which includes much more than just penetration), I occasionally will ask if the other person is okay, if something I do feels good, or if I can do this new thing that I just thought about. Communication about consent is ongoing and does not need to stop during sex, especially if you are unsure about something you want to do.

Of course, if I am having sexy times with a person I already know well and know what kinds of things they like, there doesn't need to be as much talking since I can trust them and assume implied consent about such things.

Really just the occasional pause, give them a moment to regroup, and "Hey, how are you? Do you want to keep going?" mostly covers it.

I do generally specifically pause for a moment before The First Penetration, and again, give them a moment to actually think about if this is what they want, right now. It's easy to get caught up in the moment, and even if there is consent NOW, who wants there to be regrets later?

I actually have a kind of funny story about this that happened just about a year ago....

[Sheilbh]

In the actual world, if I meet a new person and we decide to have sexy times together, I certainly like to talk beforehand about what kinds of things we like and what kinds of things are absolutely no-no. And even while we engage in sexy times (which includes much more than just penetration), I occasionally will ask if the other person is okay, if something I do feels good, or if I can do this new thing that I just thought about. Communication about consent is ongoing and does not need to stop during sex, especially if you are unsure about something you want to do.

Of course, if I am having sexy times with a person I already know well and know what kinds of things they like, there doesn't need to be as much talking since I can trust them and assume implied consent about such things.

To add to my recommendation on I May Destroy You - I think Normal People had possibly the best sex scenes in terms of depicting a relatively realistic relationship but also consent (though it is not sort of exploring consent in the way I May Destroy You does).

[Habbaku]

The way this has been described, I am, in the views of many here, both the victim and the perpetrator of several acts of "sexual assault". And I am confident that if you told me that (as a "victim") I would laugh at the idea, and if you told my partners (when they were the "victim") they would find the idea ridiculous.

I think the fear of dismissing victims of sexual assault is so pervasive that it fosters such seemingly idiotic absolutism that we're seeing here (although like with many things of this nature, I think what people say publicly and what they believe in practice is different).  Any time you have a discussion where one side of the argument is a lot more constrained than the other one ultimately leads to this ratcheting dynamic.  You can never go wrong with "more consent required is better" in a discussion, but arguing the other side opens you up to implications of being a rapist.  When such a discussion goes on long enough, you will find that having a handjob without a signed and notarized 12 page contract will make you a very bad person.

I just think the delta between how this actually works in the actual world and how it is described by many here is just...bizarre.

In the actual world, if I meet a new person and we decide to have sexy times together, I certainly like to talk beforehand about what kinds of things we like and what kinds of things are absolutely no-no. And even while we engage in sexy times (which includes much more than just penetration), I occasionally will ask if the other person is okay, if something I do feels good, or if I can do this new thing that I just thought about. Communication about consent is ongoing and does not need to stop during sex, especially if you are unsure about something you want to do.

Of course, if I am having sexy times with a person I already know well and know what kinds of things they like, there doesn't need to be as much talking since I can trust them and assume implied consent about such things.

Really just the occasional pause, give them a moment to regroup, and "Hey, how are you? Do you want to keep going?" mostly covers it.

I do generally specifically pause for a moment before The First Penetration, and again, give them a moment to actually think about if this is what they want, right now. It's easy to get caught up in the moment, and even if there is consent NOW, who wants there to be regrets later?

I actually have a kind of funny story about this that happened just about a year ago....

Dear Penthouse...

[Solmyr]

The way this has been described, I am, in the views of many here, both the victim and the perpetrator of several acts of "sexual assault". And I am confident that if you told me that (as a "victim") I would laugh at the idea, and if you told my partners (when they were the "victim") they would find the idea ridiculous.

I think the fear of dismissing victims of sexual assault is so pervasive that it fosters such seemingly idiotic absolutism that we're seeing here (although like with many things of this nature, I think what people say publicly and what they believe in practice is different).  Any time you have a discussion where one side of the argument is a lot more constrained than the other one ultimately leads to this ratcheting dynamic.  You can never go wrong with "more consent required is better" in a discussion, but arguing the other side opens you up to implications of being a rapist.  When such a discussion goes on long enough, you will find that having a handjob without a signed and notarized 12 page contract will make you a very bad person.

I just think the delta between how this actually works in the actual world and how it is described by many here is just...bizarre.

In the actual world, if I meet a new person and we decide to have sexy times together, I certainly like to talk beforehand about what kinds of things we like and what kinds of things are absolutely no-no. And even while we engage in sexy times (which includes much more than just penetration), I occasionally will ask if the other person is okay, if something I do feels good, or if I can do this new thing that I just thought about. Communication about consent is ongoing and does not need to stop during sex, especially if you are unsure about something you want to do.

Of course, if I am having sexy times with a person I already know well and know what kinds of things they like, there doesn't need to be as much talking since I can trust them and assume implied consent about such things.

Really just the occasional pause, give them a moment to regroup, and "Hey, how are you? Do you want to keep going?" mostly covers it.

I do generally specifically pause for a moment before The First Penetration, and again, give them a moment to actually think about if this is what they want, right now. It's easy to get caught up in the moment, and even if there is consent NOW, who wants there to be regrets later?

I actually have a kind of funny story about this that happened just about a year ago....

So we basically agree on things.

[Berkut]

The way this has been described, I am, in the views of many here, both the victim and the perpetrator of several acts of "sexual assault". And I am confident that if you told me that (as a "victim") I would laugh at the idea, and if you told my partners (when they were the "victim") they would find the idea ridiculous.

I think the fear of dismissing victims of sexual assault is so pervasive that it fosters such seemingly idiotic absolutism that we're seeing here (although like with many things of this nature, I think what people say publicly and what they believe in practice is different).  Any time you have a discussion where one side of the argument is a lot more constrained than the other one ultimately leads to this ratcheting dynamic.  You can never go wrong with "more consent required is better" in a discussion, but arguing the other side opens you up to implications of being a rapist.  When such a discussion goes on long enough, you will find that having a handjob without a signed and notarized 12 page contract will make you a very bad person.

I just think the delta between how this actually works in the actual world and how it is described by many here is just...bizarre.

In the actual world, if I meet a new person and we decide to have sexy times together, I certainly like to talk beforehand about what kinds of things we like and what kinds of things are absolutely no-no. And even while we engage in sexy times (which includes much more than just penetration), I occasionally will ask if the other person is okay, if something I do feels good, or if I can do this new thing that I just thought about. Communication about consent is ongoing and does not need to stop during sex, especially if you are unsure about something you want to do.

Of course, if I am having sexy times with a person I already know well and know what kinds of things they like, there doesn't need to be as much talking since I can trust them and assume implied consent about such things.

Really just the occasional pause, give them a moment to regroup, and "Hey, how are you? Do you want to keep going?" mostly covers it.

I do generally specifically pause for a moment before The First Penetration, and again, give them a moment to actually think about if this is what they want, right now. It's easy to get caught up in the moment, and even if there is consent NOW, who wants there to be regrets later?

I actually have a kind of funny story about this that happened just about a year ago....

So we basically agree on things.

I think we've been mostly agreeing all along.

[Berkut]

In the actual world, if I meet a new person and we decide to have sexy times together, I certainly like to talk beforehand about what kinds of things we like and what kinds of things are absolutely no-no. And even while we engage in sexy times (which includes much more than just penetration), I occasionally will ask if the other person is okay, if something I do feels good, or if I can do this new thing that I just thought about. Communication about consent is ongoing and does not need to stop during sex, especially if you are unsure about something you want to do.

Of course, if I am having sexy times with a person I already know well and know what kinds of things they like, there doesn't need to be as much talking since I can trust them and assume implied consent about such things.

To add to my recommendation on I May Destroy You - I think Normal People had possibly the best sex scenes in terms of depicting a relatively realistic relationship but also consent (though it is not sort of exploring consent in the way I May Destroy You does).

Im probably going to hell for this, but I swear to fucking god this clip popped up in my YouTube feed this morning!

https://youtu.be/yDxleN2S6TY?t=202

[garbon]

I forgot my rule not to click on YouTube links and was gifted Bill Burr.