On Sexual Consent

[steina]

If consent is given to sex and that consent has a proviso, which is purposefully not met... should it become rape/sexual assault?
An example would be Julian Assange style condom deceit.
I'm not sure where I stand on this one so input is appreciated.

[LineRunner]

Yes, I think it becomes rape / sexual assault, because the other person did something deliberately without consent.

[ISeeYouShiverWithAntici]

I can't really find an appropriate comparison but if I give someone my purse and tell them to take £20 and they take £200, have they not stolen £180? By giving consent for £20 have I given consent for any amount?

If I say that someone can have my trailer if they take my rubbish to the dump and they chuck my rubbish on the floor and take my trailer, can I demand it back? By agreeing to give my trailer once a criteria had been met, have I given consent for my trailer to be taken without that criteria having been met?

So yes. If you have clearly set out the terms, and those are disregarded or unilaterally changed by other person, then you did not give consent.

You gave consent for what you wanted to happen. If what you wanted is not what happened, there was no consent.

[steina]

Whilst I agree with those points and they were my position on this subject- where does that leave a woman who stops taking the pill without telling her partner, even though consent was only granted on his part with a pill-proviso?
Has she now committed rape/sexual assault?
On one level it seems you can't have one without the other. Is there a way around this?

[TheDoctrineOfSnatch]

Thanks for starting new thread - joining as promised!

[ISeeYouShiverWithAntici]

He consented to sex on the condition that the agreed upon method of contraception was used.

He did not consent to or agree to sex without any form of contraception.

I am just answering with my pov as to whether consent remains consent if the terms under which consent is given are changed without agreement.

As far as I understand it, rape is defined in law as penetration by a penis.

[TheDoctrineOfSnatch]

Would it be cleaner to talk about a man who lied about having a vasectomy and a woman who lied about being on the pill?

Condoms have an extra role as STI protection which is not played by the pill.

[LurcioLovesFrankie]

There is a fundamental asymmetry driven by biology, though. While both parties are open to a huge financial risk in the event of an unwanted pregnancy, only one party is open to a physical risk. Suppose, for instance, a woman cannot take hormonal contraception and is relying on barrier methods to avoid pregnancy. Duplicitously not using condoms after having agreed to opens her to the risk of pregnancy. She either has to undergo an unwanted medical procedure to terminate the pregnancy, or carry the pregnancy to term and go through the medical risks of giving birth.

While I agree that it is utterly morally reprehensible for a woman to have sex with a man while pretending to be using contraceptives, the situations are not directly analogous for this reason.

[hootloop]

I think yes it should. If I consent to sex and he shoves it up my arse I would feel vviolated so it is assault.
If you consent to sex using any form of birth control and it is not used then yes it is assault whether that is Not using a condom or a woman coming off the pill without saying so.

[steina]

LurcioLovesFrankie I totally get your point but don't think that potential pregnancy should be a modifier: if a man has had a vasectomy it shouldn't make him less guilty than one who hasn't!

TheDoctrineOfSnatch fair point, it would be easier. It would still leave condom vs femidom in my brain though, so still confusion. Thanks for coming btw

[MoreBeta]

Sex always requires consent both before and during and what will be the conditions that apply.

Someone having sex always has the right to say stop for any reason at any time.

Those two rules cover all eventualities.

[TheDoctrineOfSnatch]

I don't consider a femidom a sufficiently widely used method to be helpful here

[TheDoctrineOfSnatch]

If someone has unprotected sex knowing they have HIV, they may be charged with something other than sexual assault, I think - reckless endangerment of life, maybe?

Perhaps that's the answer to the imbalance Lurcio recognises; it's a new class of offence, reckless risk of pregnancy and STIs or something, and the sentencing reflects the potential harm to the injured party?

Thinking out loud here!

[steina]

It feels like I have to accept that if lying about condom use is assault then so is lying about the pill. It just seems that an unrealistically large crowbar is needed to separate the two.
For every "danger of abortion" argument a man could easily say "at least you have a choice" but I still feel that's beside the point.

[scallopsrgreat]

What do you mean 'It feels like I have to accept...'

Men have a choice too. They have a choice of putting a condom on or not having PIV sex (yes I know that actually is a real option)

[LRDtheFeministDragon]

Well yes, it is assault.

The dangers to women from unprotected sex with a man are greater than the dangers to men from unprotected sex with a woman, and given that, sentencing might need to be different (I am speaking of an ideal world where these things have a hope in hell of getting to trial. ).

Why are you asking, btw?

[TheDoctrineOfSnatch]

One issue (from the practical rather than theoretical perspective) is that they may be contemporaneous evidence of no condom (eg woman notices it discarded on the floor) whereas men would only know that the pill was a lie if later contacted by the mother/CSA.

Similarly in a vasectomy lie the woman might find out 4-5 weeks later or might never know if no pregnancy resulted.

The mens rea would be the same, exposing the other person to risk of parenthood (and additionally to risk of pregnancy for one gender)

[TheDoctrineOfSnatch]

LRD I asked stenia to start this thread as a support thread had gone a bit theoretical which might have upset the OP of that thread.

[LRDtheFeministDragon]

Mmm. I think the parallels are pretty straightfoward though.

You (male or female) consent to unprotected sex in the reasonable expectation it will not result in a pregnancy (male vasectomy/female pill/male or female infertility). You will, realistically, struggle to know whether you were lied to, or whether there was an error outside your partner's deliberate control (vasectomy/pill failure; wrongly diagnosed infertility).

You (male or female) consent only to protected sex with barrier method.

They're different levels of risk, and it's only confusing if you compare across the levels of risk.

[LRDtheFeministDragon]

Crosspost.

Ah, I see ... was just wondering as realizing we are all being rather factual/unemotional. I'm sure in reality it would always feel frightening and not clear at all. That's in the nature of it.

[scallopsrgreat]

I also think you can't dismiss the risk of pregnancy in this. A woman who lies about contraception is risking her own health. A man who lies about his contraception is risking another person's health. That is very different. We have laws in other areas of life to stop people risking other people's health e.g. smoking laws.

[scallopsrgreat]

Yes I am pretty certain though it is more frightening to be unexpectedly pregnant than it would be to find yourself possibly becoming a father.

[LRDtheFeministDragon]

True, scallops, but would that not be an issue for the severity of the punishment rather than for deciding what's assault and what's not?

[scallopsrgreat]

I think there is a moral element too. Risking your own health is one thing but someone else's health? That is really quite abusive (disingenuous at best).

[LRDtheFeministDragon]

YY, I completely agree.

I'm ignorant - but don't we already have laws that distinguish between a crime that risked yourself, and a crime that risked other people without them knowing? I thought they took into account whether you knew your action would harm someone else?

[Blistory]

I agree that it needs to come under a separate category.

A man who pretends to use birth control is easy enough to catch out there and then. The evidence, let's face it, is there. He also puts a woman at risk of pregnancy AND disease.

A woman who pretends to use birth control is impossible to catch. Who's to say the pill didn't fail for whatever reason. The evidence simply isn't there. She only puts a man at risk of disease, bad enough but lesser than the risk set out above.

There can't be parity legally because the biological starting point has no parity. Women can't be punished the same as men just to make it fair or to make it up to men that they don't get the final say in pregnancy and child birth.

Both are deceitful and a breach of trust but I struggle with the idea that it's rape. I'm not saying that it isn't but I can't quite get my head to that conclusion.