Is it rape?

[Marat]

Law has a lot of interesting puzzles revolving around the concept of continuing actions. If the injury produced by my assault on someone is a continuing, non-trivial cause of his later death, then I am guilty of murder, even if my contribution to the death is small. Thus if I stab a Jehovah's Witness who then refuses a blood transfusion at the hospital because of her religious beliefs and she dies as a result, I can still be guilty of her death. (cf. R. v. Blaue) But what if I lock someone in the closet and deny him food for three weeks and then I let him out. When he gets out he decides he will go on a hunger strike, and after another week without food he dies. Am I still guilty of killing him, since the continuing effects of my having forcibly deprived him of nutrition for three weeks have weakened him sufficiently so that he can now die of starvation after just a single additional week without food, or has the suicidal act of my victim once he got out of the closet broken the chain of causality? Cf. People v. Lewis for a similar real-world case.

[ParanoiA]

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.

 

1) Did anyone actually say "sex to completion", or was it communicated through body language and suggestive phrases consistent with mating culture and behavior for a given region? I'm not coming up with any smooth lines that contain "sex to completion"...but maybe I just lack imagination.

 

2) Since when is sexual completion qualified by climax achievement?

 

3) If the male achieves this but the female does not, does she also have these rights and can demand the male "complete" the activity? Same with same-sex couples?

 

4) What about oral relations? Right of reciprocation too?

 

I reject the notion of "completion" in any sexual activity. Some are finished after one climax, some are just getting started (I miss the days when I could do that..he he), some never reach it. Completion could mean the moment of insertion. It could mean when both agree they've had enough, regardless of any other "achievements".

 

I don't think any party in any sexual relation has any right to a damn thing, except their own consent. I'm pretty damn shocked US law actually provides for sexual obligation for even fractions of a second. I understand there are probably legitimate concerns and sticky consequences to withdrawn consent - but too bad. Laws are hard. Sorry. We don't do legal rape here. Or at least I thought..

[Moontanman]

 

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

 

 

I know exactly what you mean about polls, being polled is very painful....

[lemur]

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.

This is a good point. I would say that intentionally causing sexual frustration by any means would be more like a form of sexual harassment than rape, even if it occurs during consensual sex. In the same light, I'm not sure that failure to disclose HIV-transmission risk prior to sex is so much rape as it is assault with a deadly weapon. Does the fact that assault occurs with consensual sex as the method of delivery make it sexual assault? This seems like saying that trying to kill someone by poisoning their food is somehow different than by rigging their car to crash. I suppose the big difference with the HIV example of sex is that the person's sexuality is impaired along with their contracting a deadly disease, but how do you distinguish between sexual harassment and rape when both involve consensual sex? By the amount of trauma sustained?

 

 

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?

Even if it occurs, "on the verge of orgasm," the situation could still be rape, in the sense that withdrawal of consent can't be disregarded willfully without intent to violate the other person's sexual autonomy. What makes this question so complex is that because sex involves two people, the pleasure of one or both can cause pain for the other. So, theoretically, a person withdrawing consent could have a sexual-harassing effect on her/his partner, yet if the partner failed to respect her/his wishes and withdraw, it would be rape. Technically, the sexual harassment charge would be defended on grounds of the person's reason for asking for withdrawal; while the rape would also have to be defended on the grounds of the person's ability to cease and any intent present.

 

I think the ideal situation would involve establishing sufficient communication and respect before initiating the sex act to establish that each partner cares about the other's experience and feelings enough to either proceed to completion, stop, or otherwise change course in a way that minimize suffering for everyone involved. Of course, how many people are considerate, self-aware, mature, and wise enough to engage in sex this responsibly? Most of the time sex involves some level of power-play and exploitation on the part of both/all partners, just because the participants don't really know anything except power-games and exploitation in most aspects of their daily life.

 

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?

What if she sees men as piggish sex-fiends that deserve to be sexually tortured by any means possible? What it comes down to is that abused people tend to abuse. If a man has been exposed to belittling in situations where he ran out of steam or was otherwise pushed beyond his limits, he may develop a general attitude that people shouldn't complain and ask to stop when they're tired. As a result he could take this same attitude of intolerance during sex. Obviously, treating people this way is illegitimate whether it happens as part of sex or some other activity, but why is it surprising when people disrespect each other's limits in various ways all the time, that this culture of abuse wouldn't spill over into sexuality and sexual intercourse itself? edit: suddenly I'm reminded of Andrea Dworkin and others who write about rape culture - which is not just about sex but about a certain attitude toward domination more generally in culture.

Edited January 9, 2011 by lemur