Apparently, Rape is not Rape

[Maurepas]

Heck, I don't think they even get used to mean anything else terribly often in your average BDSM relationship. I'm pretty darn kinky, after all, and I've never once used "stop" to mean anything but "stop."

true, but stop can be "stop right now I'm not comfortable or "stop, because if you don't I'm going to c...." erm, nevermind.

There's always "Stop Fucking me, Now!"...I believe it is quite concise,

[Poliwanacraca]

Heck, I don't think they even get used to mean anything else terribly often in your average BDSM relationship. I'm pretty darn kinky, after all, and I've never once used "stop" to mean anything but "stop."

true, but stop can be "stop right now I'm not comfortable or "stop, because if you don't I'm going to c...." erm, nevermind.

That it can.

And in seriousness, I don't use safewords. Never have. I believe in covering my own ass.

I think "safewords" are really kind of a role-playing thing, myself. You are essentially agreeing with your partner that you are making up your own little private language in which "no, stop" means "keep going," and "banana" means, "okay, seriously, stop." It's not really effectively any different than deciding that "naughty schoolgirl" means "me" and "stern principal" means "you."

[Kyronea]

Heck, I don't think they even get used to mean anything else terribly often in your average BDSM relationship. I'm pretty darn kinky, after all, and I've never once used "stop" to mean anything but "stop."

true, but stop can be "stop right now I'm not comfortable or "stop, because if you don't I'm going to c...." erm, nevermind.

That it can.

And in seriousness, I don't use safewords. Never have. I believe in covering my own ass.

I think "safewords" are really kind of a role-playing thing, myself. You are essentially agreeing with your partner that you are making up your own little private language in which "no, stop" means "keep going," and "banana" means, "okay, seriously, stop." It's not really effectively any different than deciding that "naughty schoolgirl" means "me" and "stern principal" means "you."

I did not know this. I was under the impression from what I've read up that safewords were a necessary part of the experience, that without them you run the risk of making things more dangerous.

[Neo Art]

Heck, I don't think they even get used to mean anything else terribly often in your average BDSM relationship. I'm pretty darn kinky, after all, and I've never once used "stop" to mean anything but "stop."

true, but stop can be "stop right now I'm not comfortable or "stop, because if you don't I'm going to c...." erm, nevermind.

That it can.

And in seriousness, I don't use safewords. Never have. I believe in covering my own ass.

I think "safewords" are really kind of a role-playing thing, myself. You are essentially agreeing with your partner that you are making up your own little private language in which "no, stop" means "keep going," and "banana" means, "okay, seriously, stop." It's not really effectively any different than deciding that "naughty schoolgirl" means "me" and "stern principal" means "you."

Ms. Poli, you've been smoking in the girl's bathroom again, haven't you? We need to...do something about this. After class. In my office.

[Poliwanacraca]

I think "safewords" are really kind of a role-playing thing, myself. You are essentially agreeing with your partner that you are making up your own little private language in which "no, stop" means "keep going," and "banana" means, "okay, seriously, stop." It's not really effectively any different than deciding that "naughty schoolgirl" means "me" and "stern principal" means "you."

Ms. Poli, you've been smoking in the girl's bathroom again, haven't you? We need to...do something about this. After class. In my office.

Honey, I've been smokin' EVERYWHERE.

[Dyakovo]

Yet we're in a thread full of guys who are doing the equivalent of putting the controller in their unconscious roommate's hand and then expecting all of us to agree that they're totally playing a match together, because Roomie was the one who originally powered up the Wii before he passed out.

Hey! I take offense to that. I do not agree with the frat boy mentality.

[Tahar Joblis]

So like, if instead of saying "It is generally unwise to drink drain cleaner," I listed each brand of drain cleaner and specified that you shouldn't drink them, you'd conclude that "Don't drink drain cleaner" is an extremely complicated concept.

Nope. You can summarize "don't drink drain cleaner" in a single brief sentence with one clause.

You cannot adequately summarize consent in a single brief sentence; not the current legal version, nor any of the older legal versions.

There are a variety of intelligent and articulate people who are also douchebags.

And you don't need to know what exactly happened in this situation to have a conversation on the subject. Here's how it works:

You say, "IF this is what happened, THEN this is the appropriate response."

IF this girl consented and then passed out, THEN the guy who continued fucking her unconscious body is a rapist. See how that works?

And IF this woman - not a girl, hardly - told him to keep going 'til she screams, or 'til she says enough, or the cows come home, or 'til he comes, or 'til the park bench, then what? Then the man would be doing what he was explicitly told to do, idiotic hyperbole or not. No mean no; yes means yes; fill me up with your gooey white biological fluid mess means exactly that, too.

And IF the man continued fucking her while unconscious, but stopped as soon as it percolated through his drunken mind that she really had passed the fuck out, then what? Then he's raped her accidentally by your lights, for fifteen or thirty seconds or however long it takes him to figure out he's been fucking a non-responsive body. I prefer that full out rape not be commissable via unintended accident, thank you - anybody can become a rapist under that standard, you just need a narcoleptic partner and five seconds of distraction.

Morally or ethically, those two cases are more forgivable actions than the case where nothing is said and he continues fucking her unconscious body for several minutes after she passed out, aware that she is so; and in turn, that is not the same as the man and the woman walking into the park groping each other, her passing out, and then him yanking down her pants and fucking her.

It's like hitting people. Punching someone can be perfectly OK, or it can be assault, aggravated assault, assault with a deadly weapon, attempted murder, manslaughter, murder in the second degree, or murder in the first degree. The simple act of making a fist and extending it, making contact with another body, is not necessarily any one of those things; it is all the details of circumstance, of intent, ability, damage, and consent that make it so. I expect this man crossed two lines. One was going into the park with a drunken stranger to engage in sex. I would be amazed if either, let alone both, of them were sober enough to be making decisions of any consequence. The other was continuing whatever act they had agreed to - whether explicitly or implicitly may be an important distinction here, and I doubt they were explicit at all about the scope of their intended sexual activities - after she fell unconscious.

Defining the scope of consent doesn't require knowing the specifics of a situation. Just like I posted above.

The only problem with that is that the scope of consent can be pretty near anything short of death, and determining it lies in determining the matter of communication.

IF she consented but then passed out, THEN I consider her to have become non-consenting the moment she lost consciousness. But that's because I consider sexual consent to be ACTIVE, not passive.

You consider it to be current tense, instead of future tense. NERVUN even wanted to hand it a past tense. I, on the other hand, am quite well aware that permission must come prior to an act for it to have been consented to... you are then faced with the question of the scope of consent actually given.

The appropriate reaction to overly broad use of implicit consent to defend rape is not attempting to redefine the tenses of the English language and the proper use of its verbs; the appropriate reaction is to point out that implicit consent - i.e., the sort that you provide by making loud incoherent noises of pleasure - is generally extremely limited in scope (and duration) while explicit consent - that which is said aloud and which has direct quantifiable meaning - becomes far more important.

And there is the rub. You're talking about consent the way that we should talk about implicit consent, in the sort of way that we should have strangers approach each other sexually - but which does not account for explicit consent, and which does not handle all the types of implicit consent that the law can recognize in established relationships with carefully developed (if perhaps unwritten) rules. If NERVUN wants to give his wife a very special wake-up call, and they've established between them that she likes him to wake her up that way, that's OK.

If someone says that they want to have the bejeezus fucked out of them while they're sleeping, they can get someone to do that to them, and that's OK. That's the power of explicit consent - and it's so much better for us to be using and paying attention to explicit consent. Language is a powerful tool for communication.

If somebody is not conscious then they are not capable of giving consent in my book,

They are, however, capable of having given consent.

and since I don't believe that females exist in a state of default-consent it is very, very easy for me to define "fucking an unconscious woman's body" as "fucking her without her consent."

I don't believe that either - and neither, so far as I can tell, are the people you were responding to, making that a strawman. Nor am I going to be able to agree with your definition, not without adding a couple of caveats that eliminate the equality. I will again point to the fact that consent to be fucked while unconscious is something that may be offered.

Perhaps if I were not trained as a logician/philosopher, or perhaps if I was unfamiliar with the broad arena of consensual kinks, I would have mindlessly agreed with that sloppy of a definition, but I'm not, so I won't.

In that case, the post was addressed to the person I quoted. But, of course, it wouldn't hurt for everybody (male AND female) to apply that standard. If you aren't sure your partner is consenting, STOP FUCKING THEM.

And if you are sure?

If you are sure, it doesn't mean a thing. How many rapists will say their victims really wanted it? Quick show of hands, please, ladies and gentlemen?

Actually, no, it won't. You're actually LESS likely to be falsely accuse of rape than, say, assault. And even if you're accused, you're less likely to see any charges brought against you if the accusation is rape. And even if charges are brought, you're even less likely of having it go to trial.

And? The social consequences of being accused of rape are, I would gauge, worse than having to go to trial for an assault charge and then being acquitted.

The assistant track coach at my high school was accused of rape - not in the two years I was actually on the team, and it was old news by the time I learned about the accusation. He was cleared definitively by DNA evidence - not only not provably guilty, provably innocent of the offense he was accused of - but it had an enormous impact on his life.

I've sometimes wondered if, without that false accusation of rape shattering his life's course, without having former friends look on him as a rapist, he would have wound up shooting himself a couple years after I graduated, as he did. I'm not as worried about the justice system throwing me in jail for a false accusation of rape as I am the shadow that would hang over my name, the friendships I might lose, the whispered rumors re-imaging my entire life so the speakers can justify to themselves that I fit the mold of a rapist.

Meanwhile, every woman you meet has a 30% chance of being raped.

Frankly, if you really do feel that consent is a "complex" or "confusing" area of discussion, then you really should never fuck anybody under any circumstances, because it sounds like you probably WILL end up raping somebody and then claiming it was a false accusation because she consented to sex so how could she cry rape when you decided to go for anal?

Bottle? Two words: Fuck you. Fuck you and the strawman you rode in on. That, like your calling me and half the posters in this thread a douchebag, is a flame. Now wake up, slap yourself in the face, and ditch your prejudices for one minute, please. I know you can make rational discussions; you've been around here close to as long as I have.

From what I know of the two of us - and I know myself very well indeed - you are, if anything (I doubt there's much of a difference), more likely to commit several seconds of rape via your own definition, even if accidentally because your partner turned out to have narcolepsy or a seizure and you didn't realize what was going on for a moment. Chew on that for a minute. Don't whine about demographics and averages (FWIW, the 30% figure is one of the highest figures offered for the US, and the statisticians will be disputing methodology until we collectively get a better social handle on human sexuality); that's the plain and simple truth of who I am in the here and the now, and who you are in the here and now.

From all the shit I have taken for refusing to have sex with people and all the shit that I've taken for being "a flirt," "a tease," or otherwise breaking the myths of masculine behavior that some women expect me to adhere to by not having sex with them, and from the demographic evidence of all the factors I have no control over, I can reasonably expect that my being raped is more likely than either of those extremely rare possibilities of one of us becoming rapists (even accidentally via the quirk in your relatively broad stated definition, as both you and I are extremely mindful and sexually conscientious sorts). If that happens, I can look forward to being taken less seriously than a female rape victim. I can expect, even, that some of the people chanting for the judge's testicles or anal cherry in this case would dismiss it as impossible, as not rape, or even as deserved for my being a tease. I would face more ridicule and less sympathy.

This isn't about me defending my personal interests, nor do I have the personal interests you seem to assume that I will have, exercising an outdated and harmful model of how men "ought" to be motivated. This is about the questions of ethics, morality, and justice, of where we do draw the lines, and where we should draw the lines, and what distinctions are worth making.

[Tahar Joblis]

Let's try an even more simple approach.

Let's say you're drinking with your roommate, and playing Super Smash Brothers.

Let's say your roommate has a few too many, and passes out after one match.

Let's say you decide you want to keep playing Super Smash Brothers. Now, would you try to claim that you were "playing videogames with your roommate" after he passed out? Would you actually try to claim that you were playing a match against your unconscious buddy? If somebody walked in and saw you playing Smash Brothers while your roommate was passed out next to you on the couch, do you really think they'd believe you if you claimed that the two of you were playing a match together?

Let's try an even simpler approach, one that's just about as relevant... which is to say, minimally.

You are stinking drunk, and want to go on the Ferris wheel. I say you're too drunk and we'd have to break into the amusement park after hours. You whine and insist, and eventually, I take you to the Ferris wheel, pulling you over the fence, etc etc. You get in, I run over and flip the switch. Meanwhile, you've thrown up on the floor of the cab and passed out, in that order. Flipping the switch lurches you onto the floor and into the pile of vomit.

How much of the dry cleaning bill am I responsible for? Half, all, nothing, what?

[Saint Jade IV]

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?

Well, in a word, yes. The fact that he called this a "technical rape" implies that he doesn't really believe that this guy should be charged with a crime. Furthermore, that he stated that he didn't think this guy deserved to be tarred as a sexual offender (which, pardon me, he is) also speaks to the judge's beliefs that he doesn't think that this is a problem.

When in fact, it is. I can't for the life of me understand why so many people on this forum seem to be trying to defend such a disgusting act. I really don't get how continuing to fuck someone after realising that they have passed out is defensible, or in any way excusable.

[Jello Biafra]

It was nonsense. That was beside the point, as my argument isn't whether the specifics of his proposed idea are valid, but whether the idea in general of a safe word for couples is valid.

How about "ow"?

[Kryozerkia]

Meanwhile, every woman you meet has a 30% chance of being raped.

Frankly, if you really do feel that consent is a "complex" or "confusing" area of discussion, then you really should never fuck anybody under any circumstances, because it sounds like you probably WILL end up raping somebody and then claiming it was a false accusation because she consented to sex so how could she cry rape when you decided to go for anal?

Bottle? Two words: Fuck you. Fuck you and the strawman you rode in on. That, like your calling me and half the posters in this thread a douchebag, is a flame. Now wake up, slap yourself in the face, and ditch your prejudices for one minute, please. I know you can make rational discussions; you've been around here close to as long as I have.

BOTH of you ought to know better than this. Knock it off, and cool off.

Bottle, your comment being addressed is definitely a strawman, and could have been avoided entirely; alas, it wasn't.

Tahar Joblis; your comment is a flame. Once again, easily avoidable if you had chosen much different words.

Bottle's original post
Tahar Jolis' original post

[Smunkeeville]

It was nonsense. That was beside the point, as my argument isn't whether the specifics of his proposed idea are valid, but whether the idea in general of a safe word for couples is valid.

How about "ow"?

Wouldn't work. In the same way "stop, don't" doesn't work when someone is tickling you.

If you're fucking someone that you don't know well enough to have discussed a safe word, you probably shouldn't be doing anything that requires one.

[Dempublicents1]

And IF the man continued fucking her while unconscious, but stopped as soon as it percolated through his drunken mind that she really had passed the fuck out, then what? Then he's raped her accidentally by your lights, for fifteen or thirty seconds or however long it takes him to figure out he's been fucking a non-responsive body. I prefer that full out rape not be commissable via unintended accident, thank you - anybody can become a rapist under that standard, you just need a narcoleptic partner and five seconds of distraction.

As already discussed, rape requires some kind of intent. The person has to have a way to know that the other person is not consenting. So, if it took a few seconds for his drunk brain to realize that she was passed out, he wasn't raping her for those few seconds. This is just like the fact that, if the woman decided she wanted to stop, but then waited a few seconds to inform him, he wouldn't be raping her during those few seconds

It is continuing once he was aware of that fact that made the action rape.

It's like hitting people.

Good example. So, suppose I agreed to have someone hit me. Maybe it turns me on and I want to be hit. He's doing it, under the understanding that I will tell him to stop if it gets to be too much. Then I pass out. He realizes that I have passed out Does he get to keep hitting me as long as he wants? Or does he need to stop?

You consider it to be current tense, instead of future tense. NERVUN even wanted to hand it a past tense. I, on the other hand, am quite well aware that permission must come prior to an act for it to have been consented to... you are then faced with the question of the scope of consent actually given.

If that's true, someone would have to stop and ask before every act performed. But they don't. My husband can lean in for a kiss - initiating the action. If I pull back and say no, that means I don't consent. If I lean forward, I am consenting - in the current tense. As long as I continue the actions, I am still consenting.

And there is the rub. You're talking about consent the way that we should talk about implicit consent, in the sort of way that we should have strangers approach each other sexually - but which does not account for explicit consent, and which does not handle all the types of implicit consent that the law can recognize in established relationships with carefully developed (if perhaps unwritten) rules. If NERVUN wants to give his wife a very special wake-up call, and they've established between them that she likes him to wake her up that way, that's OK.

You're accusing Bottle of messing with the English language, when you're the one saying that you can't use "consent" to mean "consent with an adjective in front of it"?

Ongoing consent - in the moment consent - is implied consent. The person isn't saying no, so it is implied that they continue to consent.

Meanwhile, I don't remember Bottle suggesting that someone who explicitly consents to getting woken up with sex isn't consenting.

They are, however, capable of having given consent.

And, if this woman had told the man ahead of time, "It's perfectly ok for you to continue to have sex with me if I pass out," you'd have a point.

I don't believe that either - and neither, so far as I can tell, are the people you were responding to, making that a strawman. Nor am I going to be able to agree with your definition, not without adding a couple of caveats that eliminate the equality. I will again point to the fact that consent to be fucked while unconscious is something that may be offered.

But it has to be offered. It cannot be assumed.

[Tahar Joblis]

As already discussed, rape requires some kind of intent. The person has to have a way to know that the other person is not consenting. So, if it took a few seconds for his drunk brain to realize that she was passed out, he wasn't raping her for those few seconds. This is just like the fact that, if the woman decided she wanted to stop, but then waited a few seconds to inform him, he wouldn't be raping her during those few seconds

It is continuing once he was aware of that fact that made the action rape.

And that measure of intent? Is part of what makes plotting out what, exactly, is rape, more complex, and one of the major flaws in the definition Bottle offered.

Good example. So, suppose I agreed to have someone hit me. Maybe it turns me on and I want to be hit. He's doing it, under the understanding that I will tell him to stop if it gets to be too much. Then I pass out. He realizes that I have passed out Does he get to keep hitting me as long as he wants? Or does he need to stop?

Not everything is about consensual sexplay. A punch can be any - or none - of the things I listed even without introducing the question of whether the person being punched is consenting to do so.

In the case where someone is whacking on you for fun, the fact that you pass out generally indicates medical attention is required. Failure to do so would qualify as negligent behavior under such a circumstance.

If that's true, someone would have to stop and ask before every act performed. But they don't. My husband can lean in for a kiss - initiating the action. If I pull back and say no, that means I don't consent. If I lean forward, I am consenting - in the current tense. As long as I continue the actions, I am still consenting.

Implicitly each moment of positive response is taken as a warrant to continue. It's a warrant with a short term; it's also a warrant that can expand the scope of permissible actions.

But it's not the moment of the initiating kiss that starts the string of consent. It would not be apropos for me to simply lean in and randomly kiss the stunned stranger next to me at the bar, or grab someone's butt, or any of the other cues you might consider appropriate for your husband to drop on you out of the blue.

In your relationship with your husband, he has a measure of implicit consent to make such attempts, perhaps without even prior cues from leaning in to kiss you; this, however, is a permission that you have implicitly granted him, probably quite early in your relationship with one another.

We could go and list a hundred different situations, look at each one, and decide whether or not leaning in and putting out your lips out is considered appropriate. I would consider some random old lady patting me on the butt to be a violation of my personal space immediately, regardless of the lack of follow-up; for someone I have an intimate relationship with, however, that may be a perfectly OK form of implicit inquiry, which I could choose to either turn down, or respond positively to.

Has this been explicitly stated? No. Is it implicit? Yes. Is there a "lead time" on this implicit consent? Yes. It is granted, and then tends to continue until circumstances change sharply. E.g., you divorce your husband, your entire face is covered by burns that you indicate are painful to any kind of touch, etc. In nearly every case where behavior stays out of the realm of non-consensual sexual contact, i.e., rape and sexual assault as appropriately defined, there is a leading chain of implicit consents with slowly broadening scope that starts with cues that can't be qualified as an infringement when sprung on a stranger out of the blue.

You're accusing Bottle of messing with the English language, when you're the one saying that you can't use "consent" to mean "consent with an adjective in front of it"?

I am saying that consent is a verb, and that permission is the kind of thing that has to happen in advance. One consents to something in granting permission for something to happen.

Ongoing consent - in the moment consent - is implied consent. The person isn't saying no, so it is implied that they continue to consent.

Implied consent has a limited scope - both in the type of activity warranted, and how long it lasts. Lasting implicit consent - as in the case with your husband, who probably still has permission to lean in and attempt smooching to test for a response even after not seeing or talking to you for hours, even days - takes at least a little bit of construction work.

Meanwhile, I don't remember Bottle suggesting that someone who explicitly consents to getting woken up with sex isn't consenting.

Bottle offered a "simple" definition stating simply that sex with an unconscious person was rape. My point was that the definition offered was once again flawed by reason of its simplicity.

And, if this woman had told the man ahead of time, "It's perfectly ok for you to continue to have sex with me if I pass out," you'd have a point.

And there are a hundred ambiguous shadings of communication between that and "sex me now!" that can introduce a reasonable amount of doubt in trying to determine the precise scope of consent between the two of them. As I said, I'm pretty sure we don't have an adequate picture of this particular case.

I'm particularly curious, because if events happened as described in the article re: his testimony, and she didn't black out until she passed out, then the only way she would know she had been raped (and here, I use the definition more common to pages 8-11 of the discussion, which is probably the legal one used by the judge) is if he told her.

There are two possible explanations that come to mind. One is that she blacked out before passing out, and thus did not remember anything past taking her last shot and some guy she found attractive; another is that the account presented in the article is false, plain and simple. If the account was true, also, then the only testimony that could convict him was his own. All these things make the case very curious.

But it has to be offered. It cannot be assumed.

Legally speaking, it is still assumed in particular circumstances in some jurisdictions, generally in the case of a spouse, in some cases for levels of consciousness well below sleep; ethically speaking, I would say that this is one of those cases where the old saw about how to spell ASSUME is the advice that people should follow, and that one should have a fairly specific indicator of consent.

However, no matter how high or low we set the standard for how explicit and specific (and documented) that consent must be, the flexibility of human communications means that gray cases will exist.

[Redwulf]

Good example. So, suppose I agreed to have someone hit me. Maybe it turns me on and I want to be hit. He's doing it, under the understanding that I will tell him to stop if it gets to be too much. Then I pass out. He realizes that I have passed out Does he get to keep hitting me as long as he wants? Or does he need to stop?

Not everything is about consensual sexplay. A punch can be any - or none - of the things I listed even without introducing the question of whether the person being punched is consenting to do so.

In the case where someone is whacking on you for fun, the fact that you pass out generally indicates medical attention is required. Failure to do so would qualify as negligent behavior under such a circumstance.

Passing out generally indicates that something has gone wrong and medical attention may be needed. The fact that she was drunk instead of having been punched until she passed out does not change this. She could have had a stroke, a heart attack, a brain aneurysm, had a seizure of some sort, slipped into a diabetic coma, or been suffering from acute alcohol poisoning. Even leaving aside the fact that fucking her after she lost consciousness was by any sane definition RAPE, it was also criminally negligent in that she could have died from any number of medical conditions that needed immediate treatment while he callously continued to finish.

[Redwulf]

Legally speaking, it is still assumed in particular circumstances in some jurisdictions, generally in the case of a spouse, in some cases for levels of consciousness well below sleep

If she falls asleep during you're doing it wrong. After on the other hand . . .

[Epicnopolis]

It ain't rape if you yell, "SURPRISE!"

[Dempublicents1]

And that measure of intent? Is part of what makes plotting out what, exactly, is rape, more complex, and one of the major flaws in the definition Bottle offered.

Bottle never expressed any problem with the idea that intent must be present to be engaging in rape. The fact that the person in the case being discussed admitted knowledge of the woman's inability to consent, and that he still continued, makes it rather a moot point. Also, she was framing her comments in describing the ways that a person could know they were engaging in rape. So their knowledge of the situation is pretty much implicit in her comments.

Not everything is about consensual sexplay. A punch can be any - or none - of the things I listed even without introducing the question of whether the person being punched is consenting to do so.

We're discussing the nature of consent. So.......yeah, consent is important.

In the case where someone is whacking on you for fun, the fact that you pass out generally indicates medical attention is required. Failure to do so would qualify as negligent behavior under such a circumstance.

Passing out generally indicates that medical attention is required. Violence is not necessary for that to be true. If the person would be negligent in that circumstance, the guy who continued having sex with her instead of at least trying to find out if she was ok was equally negligent.

Implicitly each moment of positive response is taken as a warrant to continue. It's a warrant with a short term; it's also a warrant that can expand the scope of permissible actions.

But it's not the moment of the initiating kiss that starts the string of consent. It would not be apropos for me to simply lean in and randomly kiss the stunned stranger next to me at the bar, or grab someone's butt, or any of the other cues you might consider appropriate for your husband to drop on you out of the blue.

In your relationship with your husband, he has a measure of implicit consent to make such attempts, perhaps without even prior cues from leaning in to kiss you; this, however, is a permission that you have implicitly granted him, probably quite early in your relationship with one another.

You are trying to at as if implicit consent is somehow a completely different concept from consent. It's like arguing that discussing a red apple is completely different from discussing apples in general. It isn't. Implied consent is a form of consent.

I am saying that consent is a verb, and that permission is the kind of thing that has to happen in advance. One consents to something in granting permission for something to happen.

One also consents during said thing. Or, doesn't, if they choose to withdraw that consent.

Implied consent has a limited scope - both in the type of activity warranted, and how long it lasts. Lasting implicit consent - as in the case with your husband, who probably still has permission to lean in and attempt smooching to test for a response even after not seeing or talking to you for hours, even days - takes at least a little bit of construction work.

Indeed. Implied consent requires some sort of indication that such actions would be welcomed.

So, in the case under discussion, the woman would have had to give some indication that she was ok with being fucked while unconscious.

Bottle offered a "simple" definition stating simply that sex with an unconscious person was rape. My point was that the definition offered was once again flawed by reason of its simplicity.

I think you're quibbling just for the hell of it. There are plenty of things that would be considered rape, assault, etc. that are not considered a problem when someone has explicitly consented to them. I'm pretty sure Bottle is aware of this fact, and didn't think anyone was going to be silly enough to leave that out.

And there are a hundred ambiguous shadings of communication between that and "sex me now!" that can introduce a reasonable amount of doubt in trying to determine the precise scope of consent between the two of them. As I said, I'm pretty sure we don't have an adequate picture of this particular case.

Consent to something like having sex with an unconscious body can't really be reasonably deduced from anything other than the person in that body saying "You can keep having sex with me while I'm unconscious." Something like that really needs to be explicit.

I'm particularly curious, because if events happened as described in the article re: his testimony, and she didn't black out until she passed out, then the only way she would know she had been raped (and here, I use the definition more common to pages 8-11 of the discussion, which is probably the legal one used by the judge) is if he told her.

And?

There are two possible explanations that come to mind. One is that she blacked out before passing out, and thus did not remember anything past taking her last shot and some guy she found attractive; another is that the account presented in the article is false, plain and simple. If the account was true, also, then the only testimony that could convict him was his own. All these things make the case very curious.

It's pretty clear that his own testimony was important. He admitted that he was aware that she had passed out, and that he continued anyways.

Legally speaking, it is still assumed in particular circumstances in some jurisdictions, generally in the case of a spouse, in some cases for levels of consciousness well below sleep; ethically speaking, I would say that this is one of those cases where the old saw about how to spell ASSUME is the advice that people should follow, and that one should have a fairly specific indicator of consent.

In some jurisdictions, it is legally impossible to rape your spouse, even if said spouse is screaming "no!" and clawing at your eyeballs. So forgive me if I don't think the law is the ultimate arbiter in what does and does not qualify as rape.

However, no matter how high or low we set the standard for how explicit and specific (and documented) that consent must be, the flexibility of human communications means that gray cases will exist.

And I think Bottle's point was that, if the case seems gray to you, stop and make it black or white before continuing.

[Dempublicents1]

Passing out generally indicates that something has gone wrong and medical attention may be needed. The fact that she was drunk instead of having been punched until she passed out does not change this. She could have had a stroke, a heart attack, a brain anurizim (I've made firefox spellcheck cry again. How do you spell that thing where a blood vessel in your brain swells up and goes pop?), had a seizure of some sort, slipped into a diabetic coma, or been suffering from acute alcohol poisoning. Even leaving aside the fact that fucking her after she lost consciousness was by any sane definition RAPE, it was also criminally negligent in that she could have died from any number of medical conditions that needed immediate treatment while he callously continued to finish.

Aneurysm, I think. (Firefox isn't freaking out).

[Redwulf]

Passing out generally indicates that something has gone wrong and medical attention may be needed. The fact that she was drunk instead of having been punched until she passed out does not change this. She could have had a stroke, a heart attack, a brain anurizim (I've made firefox spellcheck cry again. How do you spell that thing where a blood vessel in your brain swells up and goes pop?), had a seizure of some sort, slipped into a diabetic coma, or been suffering from acute alcohol poisoning. Even leaving aside the fact that fucking her after she lost consciousness was by any sane definition RAPE, it was also criminally negligent in that she could have died from any number of medical conditions that needed immediate treatment while he callously continued to finish.

Aneurysm, I think. (Firefox isn't freaking out).

Thanks. Fixing it.

[Tahar Joblis]

Bottle never expressed any problem with the idea that intent must be present to be engaging in rape.

Yet nor did she think to include it in any of her "simple" definitions of rape.

The fact that the person in the case being discussed admitted knowledge of the woman's inability to consent,

I'm not especially inclined to take his testimony at face value, in his favor or against it; I'm also pointing out that there is a genuine difference between doing so and initiating a new act, and even in how he stops.

There is a difference between him realizing that she is passed out, and then reflexively continuing in his significantly impaired state as he comes to realize what he's supposed to do, or continuing because that's what he thought she would have wanted him to do, or, on the gripping hand (the likely one) just blithely continuing not caring that she passed out. The first is a failure of ability, where he doesn't figure out that he's technically committing rape until he definitely has crossed the line, but didn't want to cross that line. The second is a failure of communication, where he has misread her intent (and, dangerously, this case is also where she may have changed her mind the morning after). The third is a moral failure.

and that he still continued, makes it rather a moot point. Also, she was framing her comments in describing the ways that a person could know they were engaging in rape. So their knowledge of the situation is pretty much implicit in her comments.

She was framing many different comments about rape in defining it. And at this point, I'll highlight out of that list what is the actual major difference between her definition and most of the others used in this thread:

If a girl is frozen and silent and doesn't really seem to want to do something, but she's not responding when you ask her about it, don't rape her.

What Bottle has been pitching, albeit with what I found appalling salesmanship, is usually referred to as the doctrine of "enthusiastic consent," where silence or lack of response is stated to be not consent. I'm fairly fond of the EC movement.

The problem with attempting to work with enthusiastic consent as a criminal standard in the modern world is culture. Quite a few women still are heavily influenced by the traditional heteronormative idea that women's sexuality is or should be passive, which means that many women (men only rarely) are still trying to signal consent via passivity, i.e., not objecting. Enthusiastic consent has a long way to go before it becomes a social standard for sex-related communication, and even then, trying to measure rape legally by the standard of enthusiastic consent may not work out too well.

Where having a standard is important is highlighted in the central disagreement (in terms of popularity of argument) between the idea that her consent was for an act through its completion, or for an activity under implicit conditions. I've been walking a narrow tightrope designed to get everybody to hate me by saying that it really matters what actually passed between them, because I believe there are things she could plausibly have said that would make his continuance much more appropriate - as well as numerous reasons to not want to trust his testimony.

We're discussing the nature of consent. So.......yeah, consent is important.

Not always. We make some very important exceptions, as in the case of self-defense; we've made a similar exception in our definition of rape here, for intent. If someone is oblivious to what they are doing, it does not matter if they have overstepped the bounds of consent, i.e., by continuing to fuck an unconscious person that they don't realize is unconscious.

Passing out generally indicates that medical attention is required. Violence is not necessary for that to be true. If the person would be negligent in that circumstance, the guy who continued having sex with her instead of at least trying to find out if she was ok was equally negligent.

Generally, but I've found that most people who haven't had a first aid course don't know that. I've also found that with really drunk people - both having been, and having dealt with - it's actually remarkably difficult to know when they're actually passed out, and when they're just not moving very much.

I would think better if his motives if I suspected he continued to try to wake her up, if not his medical education.

You are trying to at as if implicit consent is somehow a completely different concept from consent.

Not intentionally, no. I'm trying to describe it in great detail, since it's a fairly central issue.

One also consents during said thing. Or, doesn't, if they choose to withdraw that consent.

One may withdraw one's consent during, but it doesn't make the very moment of withdrawal nonconsensual. Again, as with the granting of consent, even the withdrawal of consent leads the change in status. If you cry out a safeword ("Bob Dole!") in the middle of bondage play, it is not required that you be bond-free one second later. It suffices that what was going on stops as quickly as possible, that your partner pull out, etc. And in that moment it takes them to stop, they don't suddenly become a rapist; they're stopping as quickly as possible.

Consent must lead in order to be consent. It is that simple and inflexible; all the complexities of consent come in determining its scope. How far forward does it go; what actions are covered by it.

Indeed. Implied consent requires some sort of indication that such actions would be welcomed.

So, in the case under discussion, the woman would have had to give some indication that she was ok with being fucked while unconscious.

And as we can see from this thread, no small number of people think she definitely did; I, of course, being much more fond of being right than giving simple answers, say instead that it is plausible. Less likely than not, but it's not at all impossible that she said something that a drunken man might reasonably take as an indication. I believe I gave a couple examples of ill-advised phrases of enthusiasm that could result in him following instructions that were given, but not actually meant.

I think you're quibbling just for the hell of it. There are plenty of things that would be considered rape, assault, etc. that are not considered a problem when someone has explicitly consented to them. I'm pretty sure Bottle is aware of this fact, and didn't think anyone was going to be silly enough to leave that out.

I think Bottle wants to think there's an a priori binary division - nothing, absolutely, of the sort that could possibly give a judge cause to pause before handing down a sentence.

But what I think Bottle is overlooking is that the scope of explicit consent could well be relevant to the case. I again repeat the fact that we don't know what these two people said to each other that night.

Consent to something like having sex with an unconscious body can't really be reasonably deduced from anything other than the person in that body saying "You can keep having sex with me while I'm unconscious." Something like that really needs to be explicit.

I refer you back to my earlier response, which went a little further than the point you're discussing here.

And?

It's pretty clear that his own testimony was important. He admitted that he was aware that she had passed out, and that he continued anyways.

In some jurisdictions, it is legally impossible to rape your spouse, even if said spouse is screaming "no!" and clawing at your eyeballs. So forgive me if I don't think the law is the ultimate arbiter in what does and does not qualify as rape.

Me neither. Nor do I think the law necessarily is making all the appropriate distinctions. I pointed out that a simple punch could fall into at least eight different common legal categories (I'm sure there are more, but I'm not sure they exist in most jurisdictions); however, we only have three common legal categories for physical sexual offense (not guilty, sexual assault, rape).

This would be an ideal case to have a plea-bargain down to voluntary rapeslaughter - less egregious than initiating a sexual act with an unconscious woman and far less egregious than getting a supply of date rape drugs and planning on how you can turn some woman into your entertainment at the frat party, but still a notably more serious offense than simple sexual assault.

I'm not sure if it's a good thing or a bad thing that we don't have as carefully drawn legal categories surrounding sex as we do violence; in this particular case, though, I think only having one possible charge of "rape" is what makes this judge reluctant.

And I think Bottle's point was that, if the case seems gray to you, stop and make it black or white before continuing.

Which is a nigh meaningless point. Give a drunk horny person a moment to justify their behavior, and they may well succeed. If there's ambiguity in the mind of a person as to the morality of what they're doing, they probably will stop.

[Dempublicents1]

The fact that the person in the case being discussed admitted knowledge of the woman's inability to consent,

I'm not especially inclined to take his testimony at face value, in his favor or against it; I'm also pointing out that there is a genuine difference between doing so and initiating a new act, and even in how he stops.

There is, of course, a difference between continuing to do something after someone has passed out (unless there is pre-agreed upon permission to do so) and initiating a new act after they passed out. But I see no moral difference, nor do I think there should necessarily be a legal difference, between knowingly doing one or the other. Obviously, if it happens during the act, there's going to be a delay between it happening and the person being aware of it, just as there would be a delay between someone deciding they want to stop and being able to make that clear to the other person. I also see no moral difference (in the absence of explicit consent to do so) between someone who notices that their partner has passed out and does not stop and someone who continues after their partner has explicitly said "Stop." In either case, consent can no longer be implied.

And at this point, I'll highlight out of that list what is the actual major difference between her definition and most of the others used in this thread:

If a girl is frozen and silent and doesn't really seem to want to do something, but she's not responding when you ask her about it, don't rape her.

What Bottle has been pitching, albeit with what I found appalling salesmanship, is usually referred to as the doctrine of "enthusiastic consent," where silence or lack of response is stated to be not consent. I'm fairly fond of the EC movement.

I think the operative phrase in that definition begins with "but she's not responding when you ask her about it..." Yes, our society still teaches women to be fairly passive during sex, but it doesn't tell us not to respond when someone asks if we're ok. If you get the impression that someone doesn't want to do something, and they are unresponsive when you ask about it, it is far more reasonable to assume that they don't want to do it than that they do.

The problem with attempting to work with enthusiastic consent as a criminal standard in the modern world is culture.

TBH, I'm not sure Bottle was referring specifically to a criminal standard. I think she was pointing out the types of actions she views as rape. Those may or may not coincide with the legal definitions.

Where having a standard is important is highlighted in the central disagreement (in terms of popularity of argument) between the idea that her consent was for an act through its completion, or for an activity under implicit conditions. I've been walking a narrow tightrope designed to get everybody to hate me by saying that it really matters what actually passed between them, because I believe there are things she could plausibly have said that would make his continuance much more appropriate - as well as numerous reasons to not want to trust his testimony.

I honestly can't think of any reason to believe that his continuance would have been appropriate at all, unless she explicitly stated that him having sex with her when she was unable to participate was ok.

Not always. We make some very important exceptions, as in the case of self-defense; we've made a similar exception in our definition of rape here, for intent. If someone is oblivious to what they are doing, it does not matter if they have overstepped the bounds of consent, i.e., by continuing to fuck an unconscious person that they don't realize is unconscious.

The reason being that implied consent is still present. If someone is unaware that their partner has become unconscious, the situation for them is exactly like the situation in which the person is conscious, and hasn't acted to stop them. From their point of view, consent is still implied. Once they realize that the other person is unconscious, they no longer have that implication (unless there was a prior statement to that effect).

Generally, but I've found that most people who haven't had a first aid course don't know that. I've also found that with really drunk people - both having been, and having dealt with - it's actually remarkably difficult to know when they're actually passed out, and when they're just not moving very much.

If you can wake them up and get some sort of response that makes sense, they're probably not passed out. Drunk as shit, but not passed out. If you can't get such a response, it's time to seek medical attention.

One may withdraw one's consent during, but it doesn't make the very moment of withdrawal nonconsensual.

No, it makes any continuation after the person is aware of the withdrawn consent nonconsensual.

And as we can see from this thread, no small number of people think she definitely did;

I haven't seen any indication of that. What I have seen is a lot of people arguing that by agreeing to have sex while awake, and never explicitly asking him to stop, she automatically agreed to him continuing after she was unconscious. I've seen a lot of people with the attitude that consent lasts until explicitly withdrawn - no ifs, ands, or buts.

I've seen no one arguing that she did something to give him the impression that she wanted him to continue after becoming unconscious. Most likely, unless that's something she's specifically into, such a topic would never even come up.

But what I think Bottle is overlooking is that the scope of explicit consent could well be relevant to the case. I again repeat the fact that we don't know what these two people said to each other that night.

This is true. Of course, if there was something said that gave this man reason to believe that he had her consent for this action, he probably would have brought it up in court.

This would be an ideal case to have a plea-bargain down to voluntary rapeslaughter - less egregious than initiating a sexual act with an unconscious woman and far less egregious than getting a supply of date rape drugs and planning on how you can turn some woman into your entertainment at the frat party, but still a notably more serious offense than simple sexual assault.

I'm not sure if it's a good thing or a bad thing that we don't have as carefully drawn legal categories surrounding sex as we do violence; in this particular case, though, I think only having one possible charge of "rape" is what makes this judge reluctant.

This, I could see. Of course, we don't necessarily need a large array of charges either. It could also be addressed by greater judicial discretion in sentencing.

Do I think this guy should get the same sentence as someone who used a date rape drug? No. But, based on the information we do have, I do think he should get some sort of punishment.

Which is a nigh meaningless point. Give a drunk horny person a moment to justify their behavior, and they may well succeed. If there's ambiguity in the mind of a person as to the morality of what they're doing, they probably will stop.

One would hope so. But the prevalence of rather unambiguous rape suggests otherwise, unless the majority of those rapists actually believe they are morally perfectly in the clear.

[Tahar Joblis]

There is, of course, a difference between continuing to do something after someone has passed out (unless there is pre-agreed upon permission to do so) and initiating a new act after they passed out. But I see no moral difference, nor do I think there should necessarily be a legal difference, between knowingly doing one or the other. Obviously, if it happens during the act, there's going to be a delay between it happening and the person being aware of it, just as there would be a delay between someone deciding they want to stop and being able to make that clear to the other person. I also see no moral difference (in the absence of explicit consent to do so) between someone who notices that their partner has passed out and does not stop and someone who continues after their partner has explicitly said "Stop." In either case, consent can no longer be implied.

Here are the significant differences.

One, already mentioned, lies in ambiguity of communication on the scope of the act. At its core, rape has nothing to do with unconsciousness or consciousness, but everything to do with consent, which in turn has everything to do with communication. Such an occasion can proceed through miscommunication rather than malice, and that possibility must be considered in each case.

Two, we also know - not suspect, but know - that the rational mental processes are in an altered state as a result of being in mid-act. Someone who would, with a cooler head, stop immediately, may hesitate; he or she who would ordinarily hesitate, may not even hesitate. A similar distinction surrounds the different kinds of homicide; death in the heat of the moment in a fight that started consensually, or accidentally, is not the same as death executed deliberately with a cool head. It doe

Third is that of damage. One of the major reasons for considering something immoral is that it causes harm to another person. The harm caused by rape occurs in diverse planes. There are both physical and psychological risks/harms associated with them - and in continuing the same and only the same sex act, any physical/medical risks/harms are those which the person is willing to take on. The illustrative power of this is particularly visible on the occasions where rape leads to the transmission of disease, an opportunistic infection, or pregnancy. I would not be as harmed by misappropriation of my sperm as a woman is by involuntary pregnancy, so this may seem paternalistic of me, but this is a form of additional damage associated with performing a completely uninvited sex act, versus completing an invited sex act. In the case of the inappropriately completed invited act, we are speaking, quite literally, of the sort of thing that has to be confessed, videotaped, or witnessed by a third party in order to be known as a crime.

I think the operative phrase in that definition begins with "but she's not responding when you ask her about it..." Yes, our society still teaches women to be fairly passive during sex, but it doesn't tell us not to respond when someone asks if we're ok. If you get the impression that someone doesn't want to do something, and they are unresponsive when you ask about it, it is far more reasonable to assume that they don't want to do it than that they do.

A good point of clarification on that particular quote, thank you; but regarding what Bottle appeared to be defining as rape, see below.

TBH, I'm not sure Bottle was referring specifically to a criminal standard. I think she was pointing out the types of actions she views as rape. Those may or may not coincide with the legal definitions.

And I could not have found something more disagreeable that she said than when she said this:

If she isn't screaming your name and clawing your back, then consider yourself a rapist, jerkwad.

I've explained why using EC as a standard to judge rape in the here and now is flawed, so this particular hyperbolic exaggeration of EC needs no further comment from me.

I honestly can't think of any reason to believe that his continuance would have been appropriate at all, unless she explicitly stated that him having sex with her when she was unable to participate was ok.

Insert your own hyperbole in the blank: "F*** me 'til _____!" Hyperbolic? Yes. Plausible? Yes. As I said, there's a big difference between following directions too well and simply assuming implicit consent to complete the act.

If you can wake them up and get some sort of response that makes sense, they're probably not passed out. Drunk as shit, but not passed out. If you can't get such a response, it's time to seek medical attention.

And here I am, using the colloquial "passed out" to refer to simply losing consciousness. And yes, one tries to get a response, and if someone is completely nonresponsive, it's a problem. Am I overusing the term, then?

I'll put it another way, then. Drunk people often weave in and out of consciousness, and it can be very difficult to tell whether or not they're fully conscious at some points in time.

No, it makes any continuation after the person is aware of the withdrawn consent nonconsensual.

Not quite. Any continuation is nonconsensual activity. When the person is aware that consent has been withdrawn, it crosses another line and becomes rape (again per definitions commonly cited in pp8-11 rather the definitions offered elsewhere in this thread).

I haven't seen any indication of that.

greed n death:

Well i am going to be judge in this case.
My ruling not rape, guilty plea tossed out.
and on a side ruling the women is sent to jail for 30 days for filing a false report.
Next case.

Angleter, after I pointed out the most severe problems with his definition:

OK. Edited defintion of rape. If a woman denies consent to the sexual act, then it is rape. If she is incapacitated by somebody else, then it is rape. If she is unconscious throughout the sexual act, then it is rape.

(Note here that rape is defined also strictly in terms of women.)

Shall I proceed to quote more opinions from the thread? It would not have gotten this long without a substantial number of people taking the side that her consent covered a whole (singular) sex act and others taking the side that her consent covered a conscious activity.

What I have seen is a lot of people arguing that by agreeing to have sex while awake, and never explicitly asking him to stop, she automatically agreed to him continuing after she was unconscious. I've seen a lot of people with the attitude that consent lasts until explicitly withdrawn - no ifs, ands, or buts.

The key phrase for the version of that view I have seen articulated in this thread is not "until explicitly withdrawn" but "until explicitly withdrawn or completion of the current act." You can see the difference in Angleter's revision.

I've seen no one arguing that she did something to give him the impression that she wanted him to continue after becoming unconscious. Most likely, unless that's something she's specifically into, such a topic would never even come up.

This is true. Of course, if there was something said that gave this man reason to believe that he had her consent for this action, he probably would have brought it up in court.

And if he did, would it be quoted in the article along with all the other testimony that we aren't seeing quoted?

This, I could see. Of course, we don't necessarily need a large array of charges either. It could also be addressed by greater judicial discretion in sentencing.

These are either very good or very bad ideas. We need the lawyers to come back to the thread to help us figure this out, I think. Do you have a Summon Lawyers scroll in your pack?

Do I think this guy should get the same sentence as someone who used a date rape drug? No. But, based on the information we do have, I do think he should get some sort of punishment.

I have too much trouble trusting data that is that thin and smelly. I think he deserves something, likelier than not, but I don't trust that we have a good picture.

It could actually be, in fact, that he slipped her some kind of date rape drug - which would cause a memory blackout, something I suggested earlier from the partial picture we have. The only problem I see with that is that if he was that much of a creep, and knew she wouldn't have any memories of the actual act, why wouldn't he claim she was still conscious throughout?

[Dempublicents1]

Here are the significant differences.

One, already mentioned, lies in ambiguity of communication on the scope of the act. At its core, rape has nothing to do with unconsciousness or consciousness, but everything to do with consent, which in turn has everything to do with communication. Such an occasion can proceed through miscommunication rather than malice, and that possibility must be considered in each case.

It can, but a miscommunication that could reasonably be read as, "Keep doing this when I am rendered incapable of withdrawing consent." is pretty unlikely.

And consciousness or unconsciousness is important, because an unconscious person can neither give nor withdraw consent.

Two, we also know - not suspect, but know - that the rational mental processes are in an altered state as a result of being in mid-act. Someone who would, with a cooler head, stop immediately, may hesitate; he or she who would ordinarily hesitate, may not even hesitate. A similar distinction surrounds the different kinds of homicide; death in the heat of the moment in a fight that started consensually, or accidentally, is not the same as death executed deliberately with a cool head.

Of course, this is an argument for a different punishment, not one for a lack thereof.

Third is that of damage. One of the major reasons for considering something immoral is that it causes harm to another person. The harm caused by rape occurs in diverse planes. There are both physical and psychological risks/harms associated with them - and in continuing the same and only the same sex act, any physical/medical risks/harms are those which the person is willing to take on.

No, the person was willing to take them on, under the circumstances in which consent was given. That person is allowed to decide that they no longer wish to take those risks at any moment during the action. If they are incapable of doing so, their ability to stop taking those risks is also removed. Thus, there is no longer any implied consent, unless there is explicit consent to such an action.

In the case of the inappropriately completed invited act, we are speaking, quite literally, of the sort of thing that has to be confessed, videotaped, or witnessed by a third party in order to be known as a crime.

Unless there's someone else in the room when consent to sex is obtained, this is always true of rape. One of the biggest problems with prosecuting rape is that there are generally no witnesses, so if one person says it was consensual while the other does not, all we have is one person's word against the other's.

And I could not have found something more disagreeable that she said than when she said this:

If she isn't screaming your name and clawing your back, then consider yourself a rapist, jerkwad.

I've explained why using EC as a standard to judge rape in the here and now is flawed, so this particular hyperbolic exaggeration of EC needs no further comment from me.

Especially given the fact that she herself labeled that statement hyperbolic.

I honestly can't think of any reason to believe that his continuance would have been appropriate at all, unless she explicitly stated that him having sex with her when she was unable to participate was ok.

Insert your own hyperbole in the blank: "F*** me 'til _____!" Hyperbolic? Yes. Plausible? Yes. As I said, there's a big difference between following directions too well and simply assuming implicit consent to complete the act.

As a general rule, the "reasonable person" standard applies here. A reasonable person would not assume that such a phrase was meant to extend past the point where the other person became incapable of withdrawing consent.

I haven't seen any indication of that.

greed n death:

Well i am going to be judge in this case.
My ruling not rape, guilty plea tossed out.
and on a side ruling the women is sent to jail for 30 days for filing a false report.
Next case.

Angleter, after I pointed out the most severe problems with his definition:

OK. Edited defintion of rape. If a woman denies consent to the sexual act, then it is rape. If she is incapacitated by somebody else, then it is rape. If she is unconscious throughout the sexual act, then it is rape.

(Note here that rape is defined also strictly in terms of women.)

Shall I proceed to quote more opinions from the thread? It would not have gotten this long without a substantial number of people taking the side that her consent covered a whole (singular) sex act and others taking the side that her consent covered a conscious activity.

Yes, they are saying that her consent covered the entire act. But not one of them has argued that she did anything to give the man the impression that she was ok with being fucked while unconscious. They're just taking the viewpoint that one consents to the completion of the act the minute one consents, rather than needing to continue consenting to it throughout the action.

What I have seen is a lot of people arguing that by agreeing to have sex while awake, and never explicitly asking him to stop, she automatically agreed to him continuing after she was unconscious. I've seen a lot of people with the attitude that consent lasts until explicitly withdrawn - no ifs, ands, or buts.

The key phrase for the version of that view I have seen articulated in this thread is not "until explicitly withdrawn" but "until explicitly withdrawn or completion of the current act." You can see the difference in Angleter's revision.

....which still makes my point. In their view, she didn't need to give any indication that this was ok, because it is automatically ok just based on the fact that she consented to have sex in the first place.

In other words, they are saying that by consenting to begin a sex act, you also consent to be fucked while unconscious. I disagree.

This, I could see. Of course, we don't necessarily need a large array of charges either. It could also be addressed by greater judicial discretion in sentencing.

These are either very good or very bad ideas. We need the lawyers to come back to the thread to help us figure this out, I think. Do you have a Summon Lawyers scroll in your pack?

LAWL. No. But I do know an aspiring lawyer who agrees, if that makes any difference.

Do I think this guy shoud get the same sentence as someone who used a date rape drug? No. But, based on the information we do have, I do think he should get some sort of punishment.

I have too much trouble trusting data that is that thin and smelly. I think he deserves something, likelier than not, but I don't trust that we have a good picture.

Without something like a transcript of the case, I never trust that we have a good picture. But we can really only debate based on the information we do have.

[Tahar Joblis]

It can, but a miscommunication that could reasonably be read as, "Keep doing this when I am rendered incapable of withdrawing consent." is pretty unlikely.

And consciousness or unconsciousness is important, because an unconscious person can neither give nor withdraw consent.

Of course, this is an argument for a different punishment, not one for a lack thereof.

Very much so. This would still be in the upper "rape" category of sexual offenses. The particular thing about these two reasons is that they are not independent of one another. Impaired cognitive ability and judgment makes generous misinterpretation of communication far more likely.

So while the "heat of passion" is exerting as much influence in this case as in the case of "No, stop!" partway through, it cannot be used to support a thesis of miscommunication. Conversely, miscommunication as a thesis becomes far less plausible when the decision is made in cold blood - e.g., as in the case someone described earlier, where one partner went off, made a phone call, got a snack, or something else, and then decided a while later to go back to performing (SEX ACT) on a now-unconscious person.

No, the person was willing to take them on, under the circumstances in which consent was given. That person is allowed to decide that they no longer wish to take those risks at any moment during the action. If they are incapable of doing so, their ability to stop taking those risks is also removed. Thus, there is no longer any implied consent, unless there is explicit consent to such an action.

Unless there's someone else in the room when consent to sex is obtained, this is always true of rape. One of the biggest problems with prosecuting rape is that there are generally no witnesses, so if one person says it was consensual while the other does not, all we have is one person's word against the other's.

Not so. I say "known" not in the legal sense, but in the simple sense of knowledge possessed by people, and in the sense of "damage," knowledge from the victim's perspective. Let's say that (PERSON A) falls asleep during a particularly boring session of toothy oral sex with (PERSON B). (PERSON A) wakes up six hours later, refreshed but feeling dried saliva and noting teeth marks down there; (PERSON B) is no longer in evidence.

It is quite easy to see that (PERSON A) is not in a position to judge whether or not this type of rape has occurred until (PERSON B) 'fesses up; while s/he knows s/he received some kind of oral sex earlier, s/he was receiving such consensually earlier.

As a general rule, the "reasonable person" standard applies here. A reasonable person would not assume that such a phrase was meant to extend past the point where the other person became incapable of withdrawing consent.

A reasonable person in the throes of passion? A reasonable person with a literal mind? What kind of reasonable person? There are a large number of people who do not handle sarcasm or hyperbole very well, and we are talking about someone whose judgment is impaired not only by passion but probably rather more significantly by alcohol. Her metaphor choice, too, is one that would be likely impaired. All this means that she may mean as hyperbole something that doesn't come off as particularly hyperbolic.

This, too, is the drawback of explicit consent. When we want to emphasize that words mean exactly what they are - yes being yes, no being no, etc - it also means saying what you don't mean is far more dangerous.

Yes, they are saying that her consent covered the entire act. But not one of them has argued that she did anything to give the man the impression that she was ok with being fucked while unconscious. They're just taking the viewpoint that one consents to the completion of the act the minute one consents, rather than needing to continue consenting to it throughout the action.

....which still makes my point. In their view, she didn't need to give any indication that this was ok, because it is automatically ok just based on the fact that she consented to have sex in the first place.

In other words, they are saying that by consenting to begin a sex act, you also consent to be fucked while unconscious. I disagree.

I'm not sure I'm getting through on such distinctions as I have suspected you of overlooking, and I would not care to accidentally present a strawman by pretending to know what one or another specific poster "really means" and getting it wrong when you may well be precisely right about that poster.

LAWL. No. But I do know an aspiring lawyer who agrees, if that makes any difference.

Mmm. Well, I'd love to see someone with an idea of how the courts could/should/would handle it ramble on about it for a few hundred words or so.