Apparently, Rape is not Rape

[Angleter]

If she was passed out...how did she know she was 'raped'?

And besides, I suppose that this is the best outcome for everybody- he is obviously not a threat to society, and he does not deserve to go to jail for five or so years before being put on the sex offender list and being blackballed from life.

I say that if a woman is incapacitated by somebody else (ie. drugged), then it is rape. If her incapacitation is her own fault (ie. drunk), then it is not.

[Glorious Freedonia]

http://www.news.com.au/couriermail/story/0,23739,25823169-952,00.html

A judge refused to impose a jail sentence on a man who pled guilty to rape after continuing to perform a sex act AFTER the victim passed out. Apparently, it's unfair to mark him as a rapist.

I'm sorry, but if someone is PASSED OUT, how do you continue and not be a rapist?

While I am unsure of the appropriate sentence, I do think, if you KNOWINGLY continue to have sex with someone after they have passed out, then that makes you a rapist. Of course, she consented to an initial sex act before passing out, but we have no way of knowing what further sex acts were performed, or how far the victim was prepared to go. Because she didn't get the opportunity to consent to continuation or further sex acts.

Consent is consent until it is revoked. The consent was never revoked. The judge did the right thing.

[The_pantless_hero]

It was ruled, several years ago, that if a woman withdrew consent in the middle of the act (as in "stop, you're hurting me"), then it became rape. I would think that passing out in the middle of the act would be tantamount to withdrawing consent.

What? no.

[No Names Left Damn It]

This wasn't rape. She consented beforehand, passed out, he continued.

[Ifreann]

It was ruled, several years ago, that if a woman withdrew consent in the middle of the act (as in "stop, you're hurting me"), then it became rape. I would think that passing out in the middle of the act would be tantamount to withdrawing consent.

What? no.

Quite. By passing out the situation had changed significantly. Did she consent to having sex while unconscious? If not, it was rape. If she did, it wasn't. So consent wasn't withdrawn, it was never given.

[No Names Left Damn It]

Quite. By passing out the situation had changed significantly. Did she consent to having sex while unconscious? If not, it was rape. If she did, it wasn't. So consent wasn't withdrawn, it was never given.

She consented to sex. Sex happened. Not rape.

[Sdaeriji]

Neo A, the article quotes the judge calling this a ''technical rape'''. Since you're the law expert here, I'm curious, does the term ''technical rape'' exists in laws pertaining to rape cases or was this just something coined by this particular judge for this case?

I'm pretty sure he pulled that term directly out of his ass. I've never heard of a "technical rape" in law ever, anywhere.

Me either. Rape is rape, as far as I'm concerned. How can something be a ''technical rape'' is beyond me.

I'd probably classify statutory rape where the underage participate was willingly involved as "technical rape."

[The_pantless_hero]

Quite. By passing out the situation had changed significantly. Did she consent to having sex while unconscious? If not, it was rape. If she did, it wasn't. So consent wasn't withdrawn, it was never given.

Unless of course it was given, which is why this is a debatable issue.

[Tahar Joblis]

Apparently becasue the victim gave consent to having sex but passed out during foreplay.

The OP article says she passed out during some act of sex, which was then continued; the blog article you linked to says during foreplay, and that "it" was continued - what "it," foreplay?

I think several kinds of distinction could be considered relevant that our news articles simply are not covering in appropriate detail for us to know the whole facts of the case. We have an incomplete picture and it's in an ugly zone (see above re: scope of consent), especially since we have no idea what was actually said between them or even what was actually done.

If she was passed out...how did she know she was 'raped'?

And besides, I suppose that this is the best outcome for everybody- he is obviously not a threat to society, and he does not deserve to go to jail for five or so years before being put on the sex offender list and being blackballed from life.

I say that if a woman is incapacitated by somebody else (ie. drugged), then it is rape. If her incapacitation is her own fault (ie. drunk), then it is not.

What, so you favor frat boys taking turns with the passed out girl in the back room?

How about girls who sleep really heavily? Free rape passes there, too, right, as long as you don't wake them up?

Unconsciousness does not equal a warrant of consent for a very good reason. The girl who passed out at the party is definitely legally off-limits to the frat boys, though they may get away with their transgressions.

[Bottle]

It's so weird how people make this issue so complicated. It's not.

The mistake everyone makes is in assuming that all females exist in a perpetual state of consent, unless they specifically say "no." Hence, if a woman is unconscious and unable to say "no," then that counts as her being consenting.

The reality is that everyone, male or female, should be perceived as default-non-consenting. Unless they are actively consenting, you should assume that sex with them would be rape. Now, granted, this is the cautious approach, and naturally it is possible to have sex with a person who is consenting yet indifferent...but really, I promise you, you're not missing out if you skip those times. Why would you want to fuck somebody who isn't enthusiastic about it, anyhow?

Or, to put it even more bluntly, if your partner isn't hollering YES YES FOR THE LOVE OF GOD YES, then you're doing it wrong and should stop.

[Denne]

"When she appeared to have fallen asleep or passed out, Sloan continued to (perform the sex act)."
The article makes it seem as though the man continued to do the same act the woman had already consented to before passing out.

"To mark this man with the grave offence of rape for the rest of his days will stop him travelling to some countries and prevent him getting jobs."
It seems as though the judge was trying to show pity on a man that obviously did not intend to do anything wrong

[Bottle]

Unconsciousness does not equal a warrant of consent for a very good reason. The girl who passed out at the party is definitely legally off-limits to the frat boys, though they may get away with their transgressions.

I guess girls should start carrying around little laminated cards to make these complicated rules clear to the frat boys, eh?

"The bearer of this card does not want to be fucked while asleep. She also does not want to be fucked while passed out drunk, or while stoned, or while knocked unconscious by a sharp blow to the head. If she isn't screaming your name and clawing your back, then consider yourself a rapist, jerkwad."

[Saint Clair Island]

I say that if a woman is incapacitated by somebody else (ie. drugged), then it is rape. If her incapacitation is her own fault (ie. drunk), then it is not.

Rape doesn't have anything to do with incapacitation, though. It has to do with consent.

If she doesn't consent, it's rape, regardless of the circumstances around that lack (for instance, being asleep, unconscious, or dead and thus unable to consent). Right to liberty etc.

[Galloism]

If she doesn't consent, it's rape, regardless of the circumstances around that lack (for instance, being asleep, unconscious, or dead and thus unable to consent). Right to liberty etc.

Can you rape a dead person?

I would think that would fall under... i don't know, desecration of a corpse or something.

[Saint Clair Island]

If she doesn't consent, it's rape, regardless of the circumstances around that lack (for instance, being asleep, unconscious, or dead and thus unable to consent). Right to liberty etc.

Can you rape a dead person?

I would think that would fall under... i don't know, desecration of a corpse or something.

I threw that in on purpose, in the hope that people would read my post and go "uh huh, yeah.... wait, what?"

Desecration of a corpse would probably be it. Something to do with... destruction of property or similar if it's at a wake or a funeral or something.

[Tahar Joblis]

It's so weird how people make this issue so complicated. It's not.

The mistake everyone makes is in assuming that all females exist in a perpetual state of consent, unless they specifically say "no." Hence, if a woman is unconscious and unable to say "no," then that counts as her being consenting.

The reality is that everyone, male or female, should be perceived as default-non-consenting. Unless they are actively consenting, you should assume that sex with them would be rape. Now, granted, this is the cautious approach, and naturally it is possible to have sex with a person who is consenting yet indifferent...but really, I promise you, you're not missing out if you skip those times. Why would you want to fuck somebody who isn't enthusiastic about it, anyhow?

Or, to put it even more bluntly, if your partner isn't hollering YES YES FOR THE LOVE OF GOD YES, then you're doing it wrong and should stop.

So would you say that if Nervun decides to give the wife a special wake-up one morning, it's rape? Even if Nervun knows she really likes that sort of thing usually?

Not everybody gives loud and vocal feedback, on that topic. Some people who are not really making noise are genuinely enjoying themselves (I can be that way), and there are messy areas, quite simply, because of imperfect communication. Two people can say the same words (like, oh, "Fuck you! Fuck you!") and mean completely different things by it.

So what do we have here? What exactly is it?

*grope, grope* "Oh god yes! Fuck me til the cows come home!" *grope, grope* "Are you asleep?" *grope, grope* "Damnit, wake up!" *grope, slap* "I give up, she's really out cold and not waking up."

Or:

*grope, grope* "Huh, she is passed the fuck out." *grope, grope* "Hey, this is fun, I can do this as long as I want. *gropegropegropegropegropegropegrope* "God damn, I'm getting bored, this isn't fun anymore."

Because I can see a difference between those two scenarios.

[Hydesland]

It's so weird how people make this issue so complicated. It's not.

The mistake everyone makes is in assuming that all females exist in a perpetual state of consent, unless they specifically say "no." Hence, if a woman is unconscious and unable to say "no," then that counts as her being consenting.

The reality is that everyone, male or female, should be perceived as default-non-consenting. Unless they are actively consenting, you should assume that sex with them would be rape. Now, granted, this is the cautious approach, and naturally it is possible to have sex with a person who is consenting yet indifferent...but really, I promise you, you're not missing out if you skip those times. Why would you want to fuck somebody who isn't enthusiastic about it, anyhow?

Or, to put it even more bluntly, if your partner isn't hollering YES YES FOR THE LOVE OF GOD YES, then you're doing it wrong and should stop.

I don't understand why people keep debating whether it is rape or not, the judge said it was technically rape, just that he doesn't deserve to be banned from certain countries and have his life ruined by being labelled as a sex offender just for that, regardless of whether it is technically rape.

[Tahar Joblis]

Unconsciousness does not equal a warrant of consent for a very good reason. The girl who passed out at the party is definitely legally off-limits to the frat boys, though they may get away with their transgressions.

I guess girls should start carrying around little laminated cards to make these complicated rules clear to the frat boys, eh?

"The bearer of this card does not want to be fucked while asleep. She also does not want to be fucked while passed out drunk, or while stoned, or while knocked unconscious by a sharp blow to the head. If she isn't screaming your name and clawing your back, then consider yourself a rapist, jerkwad."

Hm... actually, seriously, could we get an adaptation of that to be printed on underwear? They're probably not going to be looking through cards in her pockets.

[Dempublicents1]

Quite. By passing out the situation had changed significantly. Did she consent to having sex while unconscious? If not, it was rape. If she did, it wasn't. So consent wasn't withdrawn, it was never given.

She consented to sex. Sex happened. Not rape.

So, once you consent to sex, the other person can perform any and all sexual acts on you without you having any ability to withdraw consent?

It would be one thing if she blacked out and he didn't know it. It is quite another thing to know that the person has lost the ability to withdraw consent and then to just make the assumption that you still have it. The latter is rape.

[Katganistan]

How stupid can you be to not know when a woman's passed out? What a frackin' idiot...

Some women act like they are dead during sex.

You're doing it wrong.

[Saint Jade IV]

Bottle is completely in the right.

This woman passed out. Whether the man was engaged in a continuation of the sex act that he already had consent for or not, he should have stopped as soon as he realised this. Not doing so is a rape that requires a punishment such as jail.

A message needs to be sent to the community at large, and young males in particular, that women are not a Fleshlight^TM, open and willing unless they are screaming, "No, No STOP STOP!" throughout the entirety of the act. Women are active participants in the act of sex, and as such, if they are not conscious, they are by default not consenting.

The judge here seems to feel that under the letter of the law it is rape, but by refusing to impose a punitive sentence which will mark this man with what he is: a rapist, he is showing his contempt for women and his beliefs that they are little more than slavish, sexually available sluts, who have no right to complain about actions taken if they happen to be drunk and consent to one particular sex act.

[Dinaverg]

The judge ... is showing his contempt for women and his beliefs that they are little more than slavish, sexually available sluts, who have no right to complain about actions taken if they happen to be drunk and consent to one particular sex act.

Really? That's really what you read?

[Molested Sock]

http://www.news.com.au/couriermail/story/0,23739,25823169-952,00.html

A judge refused to impose a jail sentence on a man who pled guilty to rape after continuing to perform a sex act AFTER the victim passed out. Apparently, it's unfair to mark him as a rapist.

I'm sorry, but if someone is PASSED OUT, how do you continue and not be a rapist?

While I am unsure of the appropriate sentence, I do think, if you KNOWINGLY continue to have sex with someone after they have passed out, then that makes you a rapist. Of course, she consented to an initial sex act before passing out, but we have no way of knowing what further sex acts were performed, or how far the victim was prepared to go. Because she didn't get the opportunity to consent to continuation or further sex acts.

I disagree.
If someone consents then doesn't say no, it ain't rape.

[Greed and Death]

http://www.news.com.au/couriermail/story/0,23739,25823169-952,00.html

A judge refused to impose a jail sentence on a man who pled guilty to rape after continuing to perform a sex act AFTER the victim passed out. Apparently, it's unfair to mark him as a rapist.

I'm sorry, but if someone is PASSED OUT, how do you continue and not be a rapist?

While I am unsure of the appropriate sentence, I do think, if you KNOWINGLY continue to have sex with someone after they have passed out, then that makes you a rapist. Of course, she consented to an initial sex act before passing out, but we have no way of knowing what further sex acts were performed, or how far the victim was prepared to go. Because she didn't get the opportunity to consent to continuation or further sex acts.

I disagree.
If someone consents then doesn't say no, it ain't rape.

I might think if someone passes out during sex, they were too drunk to consent anyways.

[SaintB]

This wasn't rape. She consented beforehand, passed out, he continued.

That's rape....

The defendant pleaded guilty to rape, the judge wants to call it a technical rape.