Is it rape?

[Pangloss]

What do you think?

[Cap'n Refsmmat]

Is this a popularity contest or a legal question?

[Pangloss]

I was thinking of it as a moral/ethical question. Should a society have such a legal definition?

[Mr Skeptic]

No, neither of them would be rape in the sense most people think about it. It should still be illegal, but it can't really compare with drugging or using violence. I think calling it rape would be akin to calling accidental death murder. And furthermore, the man involved would probably not be in a proper state of mind.

 

Nowadays, the most harm caused by rape is probably the emotional component. Any accidental pregnancies and many STDs can be treated. Withdrawing consent midway through the act due to worries of STDs or pregnancy is still valid, but not quite the same as when no consent was given to begin with.

[Fuzzwood]

They are. Obviously from that point on, the female doesn't consent to sex anymore, which is kind of the definition of rape.

[ewmon]

It is my understanding that, even ignoring the condom issue (no pun intended), if the woman keeps saying "Yes, yes, yes, yes, yes, ..." and uses other words/means of assenting throughout the sex act but, when the man is on the verge of orgasming/ejaculating, she suddenly says "NO!", it is rape if he does not withdraw immediately and without orgasming/ejaculating inside her. Basically, whenever she withdraws her consent, he must also withdraw.

[tomgwyther]

it would be an assault under the law. assault of a sexual nature is generally considered rape. Ergo the answer's yes, it's a rape

[ParanoiA]

Yeah, doesn't matter if it's your ideological hero or your adversary, it's rape. Holding idols to a different legal standard is a sycophantic coping mechanism. Should have that looked at...

 

No, neither of them would be rape in the sense most people think about it. It should still be illegal, but it can't really compare with drugging or using violence. I think calling it rape would be akin to calling accidental death murder. And furthermore, the man involved would probably not be in a proper state of mind.

 

Where is this absence of violence? Refusing to stop is a physical action and is violence. Further, it also suggests an escalation of violence in order to physically counter any attempts by the victim to regain their right of refusal.

 

The condom accidentally breaking, thereby violating their condom agreement, would be the only part akin to 'accidental death'. Continuing sexual contact after consent has been withdrawn and announced and then pretending that's not rape, is like Dr Kevorkian continuing to help someone die after they announced they changed their mind and then pretending that's not murder.

Edited December 4, 2010 by ParanoiA

[pioneer]

A similar question is say John is having sex with a prostitute. She gets the money in advance, and while having sex, she realizes she has been shorted $20 based on her agreed fee. So she yells stop, but the guy continues to until he is able to finish. Is this rape or robbery?

 

As another alternative, say John pays the agreed fee, but since he is taking longer than expected, the pro tells him to stop, since he needs to pay more. Is this rape or extortion?

 

Where the distinctions of rape start to get fuzzy is at the level of pro and semi-pro. At the level of virgin it is clear cut.

[Marat]

In law any application of physical force or touching to another person without that person's consent is an assault, and if sexual, it is sexual assault or rape. At any point when one person in a continuing sexual interaction withdraws consent, if the other persists then the other person is committing rape.

 

However, there are interesting ambiguous cases. In the 19th century a woman having sex with a man attempted to sue him for giving her a sexually transmitted disease, arguing that while she consented to having sex with him, she did not consent to getting an STD from him, which he knew he had but did not warn her about. The case failed on the legal principle of 'ex turpi causa non oritur actio,' or 'from an immoral cause no legal action can arise,' since the court would not allow the woman to use its aid to win a law suit given that she was committing adultery with the man, which was immoral.

 

More recent cases have involved women consenting to sex with men who were suffering from AIDS but said nothing about that fact to their partners. The legal question was: Was the woman consenting to sex with the particular man or implicitly only to sex with a man who did not have AIDS? If you extend the latter point, what do you do about a situation in which a man meets a woman at a bar and tells her he is a wealthy heart surgeon and she consents to have sex with him, but he is in fact an unemployed house painter? Was her consent to sex with this particular man, whatever his profession, or to this man if and only if he is in fact a wealthy heart surgeon? This raises the question, do you have to be 100% honest with your sexual partners about everything and if not, is their consent to sex with you negated?

 

The solution now adopted in some jurisdictions is to say that consent to sex is vitiated only if one partner conceals something essential about himself/herself which is potentially physically harmful to the other. The test has to be this strict since otherwise you would have absurdities like consent to sex being vitiated if you say you graduated from Princeton when in fact you only graduated from Rutgers.

[ParanoiA]

A similar question is say John is having sex with a prostitute. She gets the money in advance, and while having sex, she realizes she has been shorted $20 based on her agreed fee. So she yells stop, but the guy continues to until he is able to finish. Is this rape or robbery?

 

As another alternative, say John pays the agreed fee, but since he is taking longer than expected, the pro tells him to stop, since he needs to pay more. Is this rape or extortion?

 

Where the distinctions of rape start to get fuzzy is at the level of pro and semi-pro. At the level of virgin it is clear cut.

 

The first case is rape and robbery, both. Even with a valid agreement of trade, even without shorting the agreed price, it's still rape since all of us enjoy the opportunity to discontinue employment at any given time. If my boss pays me fairly, I can still quit and he has no right to force my labor. I may have to pay some money back though, if he paid me in advance, otherwise I could be sued for violating our contract.

 

The second case would be hard to accuse as extortion on her part, at least legally, but is definitely rape on his part if he continues against her will. Again, it's no different than if I change my mind after I got my job and then demanded more money for my labor contrary to our contract. If my boss forces me to continue my labor, that's slavery. If I force the increase in pay, then I'm in violation of our contract and he's free to dismiss my services altogether.

 

Just because it's sex service doesn't make it fuzzy at all whatsoever.

[Sisyphus]

I would say they are both rape, because it's sex against a person's will. That's what rape is. That they were having consensual sex before it was non-consensual doesn't change that.

 

The second case would be hard to accuse as extortion on her part, at least legally, but is definitely rape on his part if he continues against her will. Again, it's no different than if I change my mind after I got my job and then demanded more money for my labor contrary to our contract. If my boss forces me to continue my labor, that's slavery. If I force the increase in pay, then I'm in violation of our contract and he's free to dismiss my services altogether.

 

I don't think that would be slavery unless your boss was physically forcing you to work. You agreed in a legal contract to do X work for Y pay. You owe X work. Similarly, that prostitute owes the customer sex for the agreed upon price. However, I agree that it's still rape if she changes her mind. Violation of a contract does not grant you the right to take what you think is owed to you by force.

[Marat]

There's an interesting borderline case between contract law and slavery in Warner Brothers v. Nelson (Bette Davis appeared before the court under her given surname in the hopes of protecting her anonymity). If a film company has a contract for the services of a particular person with irreplaceable characteristics, can it seek as a remedy for breach of contract to compel the actress to perform her personal services whether she wants to or not, or would this compulsion of work against a person's will amount to a form of slavery? In theory law seeks to compensate for damages only "insofar as money may do," but in breach of contract, where the labor services of someone are still available and no amount of money can really replicate the special value of the contract worker, the situation seems to demand some service more than money. And it seems not to be true slavery to compel those services, since they are owed only for the breach of a contract which the worker has voluntarily entered into prior to his or her breach.

[lemur]

If it would be rape for a man to misrepresent himself as a wealthy heart-surgeon prior to sex, would it be rape for a woman to represent herself as being interested in having sex to completion and then changing her mind part way through without "sufficient reason?" I'm not saying this to argue for authorizing domination of men over women sexually in certain cases; I'm more wondering if people should enter into sexual relations without clear contractual protections for both parties. If men are uncomfortable with the prospect of being refused right-of-coital-completion once they've begun, shouldn't they be able to make an informed choice not to begin in the first place? Or are men just supposed to automatically know beforehand that they have no sexual rights except what the will of their partner permits? Imo, it's time for men to stop being so sexually weak and start resisting what they can't control. Sex should be mutually voluntary - not voluntary for women and compulsive for men.

[ahhhhhz]

Turn the original question around. The man says "stop...get off me" and she says "no, no, no" and keeps going. Is that rape?

[Anura]

If anybody says stop and the other wont its rape. Whatever the combo.

[Marat]

Lemur raises a very interesting question with the case of the man who is misled into becoming involved in sexual relations by the promise that these will be continued to completion, but who is then frustrated when the promised completion is denied. He has been induced into allowing intimate contact on false pretenses, so his situation seems analogous to that of the woman who has been induced into permitting a man to have sex with her on the implied understanding that he does not have AIDS when in fact he does. But by the rules now generally used in common law jurisdictions, sex is only rape if the consenting but duped partner is induced to consent to the act on the basis of mistaken information about something which is physically harmful. But how much physical harm does there have to be? Does it have to be the physical harm of getting AIDS, getting a treatable STD, or just being severely sexually frustrated? This is a genuine gray area of the law.

[Mr Skeptic]

Well, looks like about 85% of the people got the answer wrong (at least if they live in on of 43 states in the US, and not in one of the 7 where it would be rape). I only got it half-right myself, I thought it should be illegal but apparently in most of the US it's legal.

http://lawprofessors...and_court_.html

http://goliath.ecnex...hdrawal-of.html

However, California is one of seven states in which the courts have expanded the definition of rape to include the withdrawal of consent after penetration. (25)

 

Anyhow, this shows the dangers of using polls in place of reading the law and case law.

[Anilkumar]

Hello,

 

If the poll is to seek global public opinion and not verification of regional legalities concerned, my opinion is,

 

Yes. Because,

 

The man is going against both the agreement & the consent.

Edited December 6, 2010 by Anilkumar

[ewmon]

I'm not aware of the legal details in all the various American jurisdictions or elsewhere, but I also find it morally repulsive (from non-religious perspective), that someone (typically a man) can supposedly continue on with a sex act when the partner has withdrawn consent. Most people can understand a "verge of orgasm" situation, but what if the sex continues for 10 to 15 minutes or more?

 

What if he's into some "marathon sex"? Certainly, holding down and having sex with a unwilling/crying/protesting/struggling/distressed person for 45 minutes or more legally constitutes some sort of crime. If not, it most certainly should. What kind of personality would do such a thing to an acquaintance/friend/spouse/etc?

[Anilkumar]

Hi there,

 

Which is more concerning?

 

The interruption of the man's orgasm? or,

 

The consequences of carrying on with the act without the condom and ejaculating inside the woman?

 

I feel, the man can go for other means of reaching the orgasm, even after being interrupted at the last moment.

 

He should; if he values the concerns of other fellow beings.

 

Otherwise, is it not brutal?

 

And repulsive too, as Ewmon says.

 

Thanks.

Edited December 7, 2010 by Anilkumar

[Dak]

It's similar to paedophillia: having sex with a 5-year-old and a 15-year-old are both paedophillia, tho for various reasons it might be a good idea to have separate names for the two crimes.

 

Refusal to stop is rape, for similar reasons that refusing to return something that was voluntarily lent is theft -- once permission's withdrawn, you no longer have permission -- but it's miles away from pinning a struggling woman down and forcing it in her

 

similarly, agreeing to use the quick withdraw method and then cumming inside her would be 'rape', 'cos you don't have her permission to do that; tho i think a new term with slightly less impact than 'rape' would be useful.

 

hmm... would a woman claiming to be on the pill when really she's not be rape? or the sexual equivalent of fraud, I suppose?

[Marat]

Consider the interesting English case of Fagan. Fagan accidentally drove his car onto a policeman's foot. So far there is no crime, since the act was accidental, and accidents belong to the realm of negligence and tort rather than malice and crime. The policeman then yelled at Fagan and told him to drive his car off the policeman's foot, but Fagan refused and just sat there. Now there is no criminal 'act' in doing nothing; an ordinary citizen has no legal duty to carry out commands of the police; so was Fagan's just sitting in the car a criminal action of applying force to the policeman against the policeman's will?

 

In terms of physics, there was no new act of applying force, but just a passive response of not removing the existing force being applied. But the court decided to interpret the decision of Fagan to 'continue applying the force of his car to the policeman's foot' as a new act which could provide the new, non-accidental, positive application of force for criminality.

 

Some of the cases of 'rape' by not getting out in time are analogous to Fagan and would probably be interpreted by a court on similar principles.

[imatfaal]

Marat - Fagan is quirky and interesting, but I am not convinced it helps much. It is complicated by the definitions of assault and battery and the usage of common assault. Fagan is not widely used in subsequant cases. There was a continuous act of battery which became an assault once a deliberate intention was formed: "There was an act constituting a battery which at its inception was not criminal because there was no element of intention but which became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing act." [1969] 1 Q.B. 439 per James J p445. However having said that above - this line from same judgment "In our judgment a distinction is to be drawn between acts which are complete - though results may continue to flow - and those acts which are continuing" might well be useful.

Through a quick trawl - "In rejecting the appeal the Privy Council held that intercourse was a continuing act and consequently that a withdrawal of consent during the act required the accused to withdraw or be found guilty of rape. This position has subsequently been adopted in English law by the Court of Appeal in R v Cooper and Schaub. " (Edinburgh Law Review 1999 No consent: a historical critique of the actus reus of rape Victor Tadros). If you can get access the article it has some interesting arguments on both sides.

Edited December 8, 2010 by imatfaal

[lemur]

Consider the interesting English case of Fagan. Fagan accidentally drove his car onto a policeman's foot. So far there is no crime, since the act was accidental, and accidents belong to the realm of negligence and tort rather than malice and crime. The policeman then yelled at Fagan and told him to drive his car off the policeman's foot, but Fagan refused and just sat there. Now there is no criminal 'act' in doing nothing; an ordinary citizen has no legal duty to carry out commands of the police; so was Fagan's just sitting in the car a criminal action of applying force to the policeman against the policeman's will?

 

By this logic, you could lock your 17-year old daughter in a dungeon while she is still in your custody. Then, when she turns 18 and gains the right to choose to go free, you are not obligated to unlock the door and let her out? Ironically, this situation could prevent someone from raping her.