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Is ignorance turning men into sex offenders?

RebeccaDeW

April 24, 2017
0 upvotes
/r/MensRights
http://metro.co.uk/2017/04/24/is-ignorance-turning-men-into-sex-offenders-6594553/
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Post Information
Title Is ignorance turning men into sex offenders?
Author

RebeccaDeW

Upvotes 0
Comments 86
Date April 24, 2017 3:33 PM UTC
(9 years ago)
Subreddit Posted in /r/MensRights
Original Link https://old.reddit.com/r/MensRights/comments/679rvh/is_ignorance_turning_men_into_sex_offenders/
Archive Link https://theredarchive.com/r/MensRights/is-ignorance-turning-men-into-sex-offenders.924434
https://theredarchive.com/post/924434

Comments

[–]Imnotmrabut 9 points10 points11 points 9 years ago* (16 children) | Copy Link

TROLLING ALERT

There is a Concerted Attempt to Launch Stealthing as an anti male issue.

Wakipedia pages have been created in the last 48 hours https://en.wikipedia.org/wiki/Stealthing

Be careful what you say as it will be used on twitter against us all!

Also note that this is an issue with claims made against Julian Assange and seems to be linked to a developing campaign to have him arrested and tried.

[–]RebeccaDeW[S] 1 point2 points3 points 9 years ago (15 children) | Copy Link

Genuinely not an attempt at trolling, but an attempt to open the discussion up outside of my usual sphere.

[–]Imnotmrabut 0 points1 point2 points 9 years ago (14 children) | Copy Link

I get that - but forgive me for being an old Cyber War Horse and too knowledgeable fo how emergent issues get used, created and spun to other's agendas.

As a G.A.Y. man and activist on the front lines for over 30 years, I'm aware of discussions of stealthing (And a host of urban legends) going back to the 1980's and Panic over HIV.

And now, even after Years of Assange, it gets raised now during a UK Election Cycle. It stinks and has all the hallmarks of constructed moral panic in progress.

Just watch - and buy Popcorn!

[–]RebeccaDeW[S] 1 point2 points3 points 9 years ago (13 children) | Copy Link

I wrote the article, and I can assure you that the citing of Assange was purely illustrative of the fact that you can get in legal trouble for stealthing, nothing more exciting than that.

[–]Imnotmrabut 0 points1 point2 points 9 years ago (5 children) | Copy Link

And what prompted you to write?

[–]RebeccaDeW[S] 1 point2 points3 points 9 years ago (4 children) | Copy Link

There was a major report written on it, calling it 'adjacent to rape' which I thought was interesting.

[–]Imnotmrabut 0 points1 point2 points 9 years ago (3 children) | Copy Link

Do you have a link?

[–]RebeccaDeW[S] 0 points1 point2 points 9 years ago (2 children) | Copy Link

Here it is: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2954726

[–]Imnotmrabut 0 points1 point2 points 9 years ago (0 children) | Copy Link

This explains a great deal and raises many red flags.

  1. There is a massive risk here that we are going to have to deal with a full blown Morla Panic - The journal presents itself as almost Monolithic when in fact it is a minor study looking at only one side.

  2. The default position for the Author is that there needs to be NEW TORT LAW which appears to be overstating the matters raised.

  3. The Author has sought out and only reported Stealthing, but has not given a valid level of incidence - but has presented it in such a manner as to imply it's universal.

  4. The claims of Online proponents of stealing are not supported and read as Woozle - false evidence by citation

  5. The Author fails to actualy look at whether there are females who have removed condoms - assuming that a man ith a bag on it will always be aware of the condoms presence. This is gendered bias from the author.

  6. The Author overstates the issue "nonconsensual condom removal is a harmful and often gender-motivated form of sexual violence." and chooses to ignore same-sex intercourse where that gender-motivated issue is not present. Her Heteronorm bias is showing.

  7. The incidence across the USA is unknown and it is both irrational and irresponsible to claim "a new tort for “stealthing” is necessary" without explaining why present tort fails and that failure is due to lack of reason and not an institutional failure. The US legal System is riddled with failure due to State Power Over Local Statute, including sexual assault/rape.

My Fsat Assesment is that teh paper is not as valid as the author thinks - it lacks valid research or legal opinion to support the recommendation - it has the risk of being sensationalised and making matters worse, polarised and gender biased.

Good for notoriety and career track - bad for victims and those ignored due to bias.

[–]Imnotmrabut 0 points1 point2 points 9 years ago (0 children) | Copy Link

"Interviews with people who have experienced condom removal and online accounts from victims indicate that nonconsensual condom removal is a common practice among young, sexually active people."

"common practice" is loaded piece of language that is not quantified or qualified. Leaves the reader obliged to assume that the incidence is every day at a high frequency. The author negligently faisl to analyse the syste she sused to gain the reports (Rape Crisis) against Full population.

She presents a limited unstructured set of reports as universal. A no point does she highlight of her opinionated findings are valid or linked to any sampling bias.

She is presenting Dramatic Anecdote in a decontextualised manner and with zero basic academic safeguards against misunderstanding or misinterpretation by unqualified readers.

There is a dishonest representation and validity of sources. She sites a website on "Stealthing Tips" as relating to her groups of Women - the author is a G.A.Y. man and his advise is to G.A.Y. men.

The author chooses to misrepresent sources as being about Female Victims and ignores the issues of Same-Sex Stealthing.... this is academic dishonesty.

She refers to the issue of pregnancy as risk and downplay STI as risk. It should be noted that prior to the 1980's mass use of Condoms was low and only arose due to STI HIV risk. To fixate on pregnancy risk and ignore STI risk is actually sexist and verges on the negation of same-sex risk.

"Situating nonconsensual condom removal within the broad category of gender violence reveals that the practice is an ethical wrong with practical, psychic, and politically salient repercussions for its victims. Feminists have long worked....."

This is an interesting piece of Linguistic Ledgermain.

The issue is framed as Gendered Violence (meaning women) ... and then links it to Feminism.

She makes the argument that it is a legal issue but does so under the guise of it being feminist.

This Linguistic Ledgermain is par for the course and has been seen frequently under the guise of Rape Culture and the 1 in 4 campus Bogeyman. The 1 in 4 figure was debunked by the US Government in 2015.

Here we have a new emergent gendered Bogeyman, presented as High Incidence but lacking actual proof, presented as a threat Only to Women and perpetrated only by men as "Gendered -Violence".

I geive you the latest MOral Panic and Source to Be Woozled for a Decade ...... and i;s not even clear;

  1. How Often It Occurs
  2. Causation - is it Male Aggression or failing Sex Education in the US with community amnesia around HIV and risk increasing. In the UK there is a growing issue with HIV infection rates due to teh same loss of community memory on HIV - the fear engendered in the 80's 90's no longer functions as a new generation emerges with less knowledge that the previous hoards.
  3. The jump to addressing matters with Tort is classic "Carceral Feminism" where the state is made agency of the feminist pardigm and against males.

[–]equiposeur 0 points1 point2 points 9 years ago (6 children) | Copy Link

Is it coincidental that the "Stealthing" wikipedia page was created one day before you published this article?

[–]RebeccaDeW[S] 1 point2 points3 points 9 years ago (5 children) | Copy Link

Not really, no. There was a major report released about it, which sparked a lot of articles, and presumably a Wikipedia entry.

[–]equiposeur 0 points1 point2 points 9 years ago (4 children) | Copy Link

Do you have a link to the report?

[–][deleted] 0 points1 point2 points 9 years ago (1 child) | Copy Link

It's cited in the Wikipedia page you mentioned.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2954726

[–]equiposeur 1 point2 points3 points 9 years ago (0 children) | Copy Link

Thank you.

[–]RebeccaDeW[S] 0 points1 point2 points 9 years ago (1 child) | Copy Link

Here we go https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2954726

[–]equiposeur 0 points1 point2 points 9 years ago (0 children) | Copy Link

Thank you.

[–]omegaphallic 3 points4 points5 points 9 years ago (4 children) | Copy Link

I don't support stealthing, but I also don't support the double standard , where is this woman demanding we teach women that lying about being on the pill is sexual assault?

[–]RebeccaDeW[S] 0 points1 point2 points 9 years ago (3 children) | Copy Link

It's not the same problem because the pill only prevents pregnancy, not STI's. When you slip off a condom you endanger another person's safety, as well as risking getting them pregnant.

That's not to say that it's okay to pretend that you're on the pill, because it's not, but it is different.

Also, when a woman says that she is on the pill you still have the option to use a condom, whereas if you remove the condom the woman in question has no options available to her.

[–]girlwriteswhat 1 point2 points3 points 9 years ago (1 child) | Copy Link

In Canada, there was a recent Supreme Court decision where the guy poked holes in the condoms, believing a pregnancy would save his failing relationship.

He was convicted of sexual assault because he violated her consent--she consented to safe sex, not unsafe sex. It was considered an aggravated sexual assault because the physical injury of a pregnancy (and subsequent abortion) resulted.

Insanely, the judge's original decision stipulated that his decision could not be used to prosecute women who lie about being on birth control, because men don't get pregnant. Apparently, consent only matters if you can be physically injured when it is violated.

"As we have seen, “fraud” for the purposes of consent has two elements: (1) dishonesty, which can include the non-disclosure of important facts; and (2) deprivation or risk of deprivation in the form of serious bodily harm which results from the dishonesty."

This completely ignores the totality of the general legal concepts of fraud and consent, upon which sexual consent law is based.

The SCC decision went into extreme detail to explain that contraceptive measures, including condoms, do not constitute a part of "the sexual activity in question." In their words, "Effective condom use is a method of contraception and protection against sexually transmitted disease; it is not a sex act."

They did this, they said, specifically to avoid the "overcriminalization" that might result from the inclusion of birth control measures that are not condoms into the case law regarding findings of "no consent to the sexual activity in question."

The definition of "the sexual activity in question" thus remains narrowly enough defined as to exclude any interpretation of "I consented to safe sex, not unsafe sex," which happily excludes men from any statutory recourse when lied to about birth control. If they consented to safe sex, and WOULD NOT have consented to unsafe sex, it doesn't matter, because according to the SCC, the contraception is a secondary accoutrement and does not constitute part of the definition of "the sexual activity in question."

Because women face a risk of serious bodily harm in terms of pregnancy, the SCC felt that the decision in this case MUST be based on fraud, which is narrowly defined to exclude forms of harm other than physical/bodily harm.

This decision basically means that, under the law, the only form of protection that matters in terms of sexual assault, is condoms--they protect against pregnancy (a risk of bodily harm) and against STIs (a risk of bodily harm). A man replacing his wife's birth control pills with tic tacs would also apply, as it presents a risk of bodily harm to her.

But a woman lying about birth control does not constitute sexual assault because it does not fit the narrow definition of fraud that MUST present a risk of "serious bodily harm" to the victim, and just like condoms, it is not a fundamental part of what constitutes "the sexual activity in question". Even if the guy would never have consented to sex if he'd known she wasn't on the pill--even if in terms of his consent in the moment it was given, it constituted a fundamental part of his decision and its absence would have changed his decision.

And they openly state in this decision that the reason they took this approach was to avoid "over-criminalizing" certain sexual acts. The only sexual acts they avoid criminalizing via this approach are acts involving women who lie about birth control to obtain consent from men.

[–]pobretano 0 points1 point2 points 9 years ago* (0 children) | Copy Link

This is just judicial activism in its full glory! And a textbook example of ad hoc decision!

What the fuck is happening?

[–]Awwtist 0 points1 point2 points 9 years ago (0 children) | Copy Link

Excuse me, you clearly have a double standard of what is consent.

[–]EsraYmssik 8 points9 points10 points 9 years ago (2 children) | Copy Link

In terms of consent, she's consented to sex WITH condom. So, technically, yes.

OTOH If this 'stealthing' thing is for real, the problem is not to teach young men about consent.

Teach them about STDs. If I've just picked up a girl in a club and she's OK to go bareback, the absolute LAST thing I am going to do with her is go bareback.

It's the old joke that if you fuck a girl bareback, you're fucking everybody else she's fucked.

OTGH Teach young men about fucking child support! To be honest I seriously doubt this is for real. Like any guy is going to risk being put on the hook to support some girl he may have only met once for the next 18 years.

[–][deleted] 0 points1 point2 points 9 years ago (0 children) | Copy Link

The whole

Is ignorance turning men into sex offenders?

is like saying

Is ignorance turning immigrants into criminals?

b/c that is the argument you hear about cultural differences, where someone from an outside culture comes to another culture and proceeds to commit a crime that would not be punished in home country but is here.

so I guess its possible, ya.

[–]PepperTe 0 points1 point2 points 9 years ago (0 children) | Copy Link

In terms of consent, she's consented to sex WITH condom. So, technically, yes.

We don't give a shit about the guys who only consented to sex with birth control, so why should I care here?

[–]scotiej 2 points3 points4 points 9 years ago (21 children) | Copy Link

For one thing, slipping off a condom during sex doesn't make it a sexual assault. It just means he's an ass with little thought to consequences.

If someone (not just guys) keeps trying to push something during sex that you don't want, put a stop to it. I've heard stories from friends about women that tried and occasionally succeeded at this very thing.

[–]girlwriteswhat 2 points3 points4 points 9 years ago (2 children) | Copy Link

Yes it does, if he does it without her knowledge. And it should.

If I had my druthers, a woman who lies about birth control would be equally guilty of sexual assault.

Sexual consent law is based loosely on contract law.

Fraud violates a contract, and vitiates the other party's consent. This goes for formal and informal contracts.

So say I go into a restaurant, and I order a nice meal, and sit and eat it and then skip out on the check. Lots of people believe that's theft, but it's actually fraud. When I ordered, I entered into a contract with the restaurant--the terms are very simple. They agree to provide me with the food I ordered, and I am agreeing to pay for it.

The fact that I intentionally tricked to restaurant into a deal they otherwise would not agree to (they did not, and would not, agree to provide me with the food I ordered for free), means I have violated their consent.

Same thing if a restaurant takes my order and my money, then tells me that they never intended to provide me with what I ordered and will not give me my money back, and they do not provide any reason for that decision other than they wanted my money and didn't want to provide me with food.

I would not have entered into an agreement to give the restaurant my money and get nothing in return. They misrepresented themselves as a restaurant--a place where, via informal contract or "handshake agreement", it is understood that they provide you with the food you ordered as long as you pay the agreed upon price, not as a place where they take your money and give you nothing.

That would be fraud, and it's a violation of the contract I was led by the restaurant to believe I was entering into, and that fraud vitiates my consent.

If I agree to sex on the condition that the guy use a condom, and he slips it off partway through without my knowledge and continues to have sex with me, that intentional act vitiates my consent. That is a contract I would not have entered into.

[–]scotiej 0 points1 point2 points 9 years ago (1 child) | Copy Link

I'm aware of that now. I didn't know at the time that I wrote the comment that it was counted as sexual assault. I've done my research since then.

[–]girlwriteswhat 1 point2 points3 points 9 years ago (0 children) | Copy Link

That's good, if only to make sure you know how to stay on the right side of the law. :)

[–]Imnotmrabut 3 points4 points5 points 9 years ago (6 children) | Copy Link

In many countries it does.

Kindly check your local civil code and legal liabilities before implying you have Universal Knowledge..... and look like an even bigger pratt!

[–]scotiej 0 points1 point2 points 9 years ago (5 children) | Copy Link

I'd rather look like a pratt than be a cunt.

[–]Imnotmrabut -1 points0 points1 point 9 years ago (4 children) | Copy Link

Well you already look like a Dick Head .... so you seem to have the appropriate genitals in place for your chosen behaviours! P¬))

Add in your concerns as to looking like other genitals and you will just make you a Hermaphrodite ... in which case you will be at liberty to go and F### yourself any time you fancy..... and you can even Stealth yourself too! P¬))

Cheers

[–]scotiej 0 points1 point2 points 9 years ago (3 children) | Copy Link

Oh no, school yard insults. How ever will I cope at being told to go fuck myself? The shock. The horror.

[–]Imnotmrabut 0 points1 point2 points 9 years ago* (2 children) | Copy Link

Glad you are so amused and it took so little as well! P¬))

[–]terribletweets 0 points1 point2 points 9 years ago (1 child) | Copy Link

Holy shit, you've been on a tear recently!

Picked up your CopyQ tip btw, thanks for that.

[–]Imnotmrabut 0 points1 point2 points 9 years ago (0 children) | Copy Link

CopyQ is a godsend - and literally unlimited - Couple it with Mendeley for references and you can speed up workflows massively https://www.mendeley.com/

[–][deleted] 1 point2 points3 points 9 years ago (10 children) | Copy Link

For one thing, slipping off a condom during sex doesn't make it a sexual assault. It just means he's an ass with little thought to consequences.

It kinda does dude.

[–]scotiej 1 point2 points3 points 9 years ago (8 children) | Copy Link

I'm not saying that people haven't done it for malicious purposes, but is it a law?

[–]Imnotmrabut 3 points4 points5 points 9 years ago (2 children) | Copy Link

but is it a law?

In many countris YES.

The consent is for sex with condom - deliberate alteration of the consent mkes it sexual assault/rape - gender is irrelevant.

[–]mikesteane 1 point2 points3 points 9 years ago (1 child) | Copy Link

And so it should be. People use protection for good reasons and to have that protection removed without consent should be a crime. And so should deliberately lying about being on the pill and misleading a partner when you know you have an STD.

[–]Imnotmrabut 1 point2 points3 points 9 years ago (0 children) | Copy Link

I agree - and I want to see the issue of Paternity Fraud by False Consent Addressed - but it is not the same as Stealthing.

When people mix up the two they dilute a valid argument that needs to be heard about Mens' Rights and Paternity Fraud.

[–][deleted] 1 point2 points3 points 9 years ago (2 children) | Copy Link

There was that footballer who did the "stealth" (never heard it named that before) and transmitted a disease and was charged with Aggravated assault (and convicted I believe).

It might hold up in court if you could prove every step he agreed and that you could prove he removed it, but most people don't film sex so I doubt it would be upheld.

[–]scotiej 2 points3 points4 points 9 years ago (1 child) | Copy Link

Hmm, fair enough. Shit, I know a married friend of mine. His estranged wife was trying to get him back, she claimed she was using a nuvaring, and whoops, she's pregnant again.

[–][deleted] 1 point2 points3 points 9 years ago (0 children) | Copy Link

That does happen.

[–]RebeccaDeW[S] 0 points1 point2 points 9 years ago (1 child) | Copy Link

Depends on where you live. I chatted to a lawyer about it, who told me that in the UK/ US you could quite possibly be convicted for it, but it would depend on the case.

[–]scotiej 0 points1 point2 points 9 years ago (0 children) | Copy Link

I did some reading as well and it's also very possibly in Canada.

[–]PepperTe 0 points1 point2 points 9 years ago (0 children) | Copy Link

No it doesn't. Same way her lying about BC isn't sexual assault.

[–]thrway_1000 0 points1 point2 points 9 years ago (0 children) | Copy Link

https://archive.is/5Vwki

[–]Imnotmrabut 0 points1 point2 points 9 years ago* (0 children) | Copy Link

“carceral feminism”
: the commitment of abolitionist feminist activists to a law and order agenda and, as Marie Gottschalk has similarly described within the context of the u.s. antirape and battered women’s movements, a drift from the welfare state to the carceral state as the enforcement apparatus for feminist goals.
Bernstein, Elizabeth. "The sexual politics of the “New Abolitionism”." differences 18.3 (2007): 128-151.
Propoganda Implications
Advocacy Research and Moral Panic

[–]Imnotmrabut 0 points1 point2 points 9 years ago* (0 children) | Copy Link

What is Stealthing?
Stealthing is a form of sneakily compromising, tampering with or removing a condom
Stealthing can involve someone strategically damaging a condom before intercourse, or the stealthy removal of the condom during intercourse. In the practice of condom stealthing, either party can be the deceptive one.
The receiving partner can damage the condom, either by poking holes in it, or suggesting to use a non-condom safe lubricant, like oil. On the other hand, the non-receptive partner can take the condom off during coitus. This condom removal technique is most common during doggy style, during which it is harder to see what is going on behind the receiving partner (unless mirrors are present).
Stealthing can occur between partners of any sexual preference, but is most commonly associated with women who are trying to become pregnant by poking holes in a condom, as in the banned clothing ad from Disigual ...., or by HIV positive people in the POZ scene who find gratification through the transmission of the virus. However, anyone can stealth– so even people in long term, monogamous and STD-free relationships should beware.
Source: "What is Stealthing", CondomDepot.com, May 13, 2014
Archive Copy 1, Archive Copy 2, Archive Copy 3
Propoganda Implications
Advocacy Research and Moral Panic

[–]RebeccaDeW[S] 0 points1 point2 points 9 years ago (53 children) | Copy Link

Puts tin hat on

I'd be genuinely interested to hear what people think about this. Unless posting here isn't legit, in which case feel free to delete it.

Thanks!

[–]bufedad 2 points3 points4 points 9 years ago (8 children) | Copy Link

Taking a condom off during sex isn't sexual assault anymore than lying about being on the pill is rape.

On the other hand, if you sleep with people you don't know, they will do things you don't expect during sex (sometimes that's a good thing, sometimes it's not).

[–]Imnotmrabut 1 point2 points3 points 9 years ago (7 children) | Copy Link

Doing so covertly in breach of consent makes it rape in many countries.

You seem to be preaching wishful thinking on your part as Reality ..... and looking like an Ignorant Douche as a result. Not sure if you are in the US but you appear Red Neck ... and even red all over! P¬))

[–]bufedad 1 point2 points3 points 9 years ago (6 children) | Copy Link

Doing so covertly in breach of consent makes it rape in many countries.

What they consider rape, and what actually is rape, are two different things.

Moronic countries considering removing a condom rape, but not lying about the pill? Yes, absolutely moronic countries.

[–]Imnotmrabut 1 point2 points3 points 9 years ago (5 children) | Copy Link

Could you tell me your country and state of residence - I can then look up how Moronic your index is.

[–]bufedad 2 points3 points4 points 9 years ago (4 children) | Copy Link

Not a fucking moronic country like the UK, where a woman forcing a man at gunpoint to have sex isn't considered rape.

[–]Imnotmrabut -1 points0 points1 point 9 years ago (3 children) | Copy Link

You seem to be somewhat racist.

Are you by any chance an American?

That constitution thing makes folks think and behave in the queerest ways. P¬))

[–]bufedad 0 points1 point2 points 9 years ago (2 children) | Copy Link

Pointing out moronic behavior is now a racist?

[–]Imnotmrabut 0 points1 point2 points 9 years ago (1 child) | Copy Link

No! Pointing out US Moronic behaviour, where idiots make UK legal issues all about the boondocks .... that is racism, but it's racism Jim, but not as they known it. P¬))

Go back to playing your banjo!

[–]bufedad 0 points1 point2 points 9 years ago (0 children) | Copy Link

lol... pointing out sexist behavior in the UK legal system is racism now... got it.

You are a troll and can safely be ignored.

[–]afireinthesky 1 point2 points3 points 9 years ago (40 children) | Copy Link

Wouldn't say taking a condom off is sexual assault, so much as just being a douche. But yes I can agree that guys do need to learn what's cool and not cool. Hell I don't even have sex without expressly asking.

[–][deleted] 2 points3 points4 points 9 years ago (39 children) | Copy Link

It totally can be assault. if you agreed to use it.

[–]DevilishRogue 1 point2 points3 points 9 years ago (38 children) | Copy Link

Bullshit. You consent to sex or you don't. Do you think men consent to being lied to about her being on the Pill? Of course not, but it's still not assault if she lies any more than it is if he lies.

[–]Imnotmrabut 1 point2 points3 points 9 years ago (4 children) | Copy Link

The "I Scream Bullshit" defence is not a defnce, just ignornace.

You are wrong concerning the appication of law in many countries. .... and I have to assume you are American! P¬))

[–]DevilishRogue 1 point2 points3 points 9 years ago (3 children) | Copy Link

Absolutely I'm wrong about the application of law, but I am not at all wrong about the fact of it not being assault in reality. That something is deemed illegal doesn't make it right to be so. And if Ian Duncan-Smith can use the phrase in Parliament I should feel free to do so in the subreddit without being accused of being a colonial!

[–]Imnotmrabut 2 points3 points4 points 9 years ago (2 children) | Copy Link

Darling - if you are going to quote UK issues - then get up to speed with the CPS Guidance.

Kindly stop throwing out opinion as fact or worse.... it just makes you look like a Troll giving bad advice in the hope that some poor schmuck will end up following it and get lynched. You look like a Total Dick!

Accurate advise follows .... to counter your Stupidity!

'Conditional' Consent - Rape and Sexual Offences: Chapter 3: Consent - Crown Prosecution Service
Section 74 has recently been considered by the High Court and the Court of Appeal in a series of cases where ostensible consent in relation to sexual offences was considered not to be true consent, either because a condition upon which consent was given was not complied with or because of a material deception (other than one which falls within section 76 of the Sexual Offences Act 2003 [SOA]). The resultant judgments identified three sets of circumstances in which consent to sexual activity might be vitiated where the condition was breached.
In Julian Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin), an extradition case, the President of the Queens Bench Division considered the situation in which Mr Assange knew that AA would only consent to sexual intercourse if he used a condom. Rejecting the view that the conclusive presumption in section 76 of the SOA would apply in these circumstances the President concluded that the "issue of materiality ...can be determined under section 74 rather than section 76".
On the specific facts the President said: "It would plainly be open to a jury to hold that if AA had made clear that she would only consent to sexual intercourse if Mr Assange used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom ..... His conduct in having sexual intercourse without a condom in circumstances where she had made clear she would only have sexual intercourse if he used a condom would therefore amount to an offence under the Sexual Offences Act 2003...."
In R (on the application of F) v The DPP [2013] EWHC 945 (Admin), the High Court examined an application for judicial review of the refusal of the DPP to initiate a prosecution for rape and/or sexual assault of the complainant by her former partner. "Choice" and the "freedom" to make any particular choice must, the Court said, be approached in "a broad commonsense way".
Against what the Court described as the "essential background" of the complainant's partner's "sexual dominance" and the complainant's "unenthusiastic acquiescence to his demands", the Court considered a specific incident when the claimant consented to sexual intercourse only on the clear understanding that her partner would not ejaculate inside her vagina. She believed that he intended and agreed to withdraw before ejaculation, and he knew and understood that this was the only basis on which she was prepared to have sexual intercourse with him. When he deliberately ejaculated inside the complainant*, the result, the Court stated was:
"She was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly her consent was negated. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuation of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape".
The third case, Justine McNally v R [2013] EWCA Crim 1051, differs from those referred to above. Unlike Assange and F, both of which turned on an express condition, McNally was concerned with the material deception of the victim by the Appellant.
The Court of Appeal dismissed McNally's appeal against her conviction on six counts of assault by penetration contrary to section 2 of the SOA and allowed her appeal against sentence. The "undeniably unusual" facts considered by the Court involved the relationship between two girls which, over 3 years, developed from an internet relationship to an "exclusive romantic relationship" that involved their meeting and engaging in sexual activity. From the start McNally presented as a boy, a deception she maintained throughout the relationship. Examining the nature of "choice" and "freedom", the Court determined that "deception as to gender can vitiate consent".
The Courts reasoning was as follows: "Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing the latter is a male. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellants deception."
Demonstrating that the circumstances in which consent may be vitiated are not limitless, the Court explained: "In reality, some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent."
Referral to the PLA
In the light of the developing concept of conditional consent and the absence of a clear authority as to how far the concept extends, all proposed decisions in conditional consent cases whether to charge or not - must be referred to the PLA for authorisation.
This is in order to allow the PLA to oversee charging decisions being made in these cases and to provide advice in appropriate cases. Accordingly, the PLA must be notified prior to any decision being communicated to the police or any other party.
For the avoidance of doubt, details of all cases referred by the police which are not thought to pass the Full Code Test must also be sent to the PLA (before the decision is communicated), as well as those where it is intended to charge.
For these purposes conditional consent refers to allegations of sexual offences in which it is said that ostensible consent was not true consent, either because of a material deception (other than one which falls within section 76 of the Sexual Offences Act 2003) or because a condition on which consent was given was not complied with.

[–]DevilishRogue 1 point2 points3 points 9 years ago (1 child) | Copy Link

You are confusing what the law says with what actually is. I'm not offering advice, I am pointing out that consent in reality, is consent to an activity. Putting conditions on that activity that may fail to be met through no fault of either party yet that hold one party and one party only accountable is an injustice, even if it is an injustice codified in law.

[–]Imnotmrabut 1 point2 points3 points 9 years ago (0 children) | Copy Link

Oh boy - you remind me of an old dog of mine - once it had a rag to pull on he never stopped.

Let us know when it's time for walkies so you don't piss on the carpets.

[–][deleted] 1 point2 points3 points 9 years ago (23 children) | Copy Link

Do you think men consent to being lied to about her being on the Pill? Of course not,

That is also assault, or battery.

[–]afireinthesky 1 point2 points3 points 9 years ago (21 children) | Copy Link

Then by all means, be the first to bust out the handcuffs

[–]EsraYmssik 1 point2 points3 points 9 years ago (1 child) | Copy Link

I usually leave that until the second date.

[–]Imnotmrabut 0 points1 point2 points 9 years ago (0 children) | Copy Link

Why wait for a second date - if he's consenting and willing to pay .... I take Amex, Diners club PayPal and Bitcoin. P¬))

[–][deleted] 0 points1 point2 points 9 years ago (18 children) | Copy Link

That is a reality I doubt we will experience.

Women aren't judged like that most of the time.

[–]bufedad 3 points4 points5 points 9 years ago (17 children) | Copy Link

Women aren't judged like that most of the time.

Translation: Only men lying for/during sex is an issue.

[–][deleted] 0 points1 point2 points 9 years ago (16 children) | Copy Link

from a point of view mostly yes.

[–]bufedad 1 point2 points3 points 9 years ago (15 children) | Copy Link

from a point of view mostly yes.

Sorry, fuck you.

When a woman lies about being on the pill, she's not just assaulting you right now, she's attempting to attack your entire future. She's attempting to steal your financial future for the next 18 years at a minimum.

From that point of view, women who lie about being on the pill should spend a decade in prison.

[–]RebeccaDeW[S] 1 point2 points3 points 9 years ago (0 children) | Copy Link

I'd say it's more entrapment because it's about trying to get pregnant rather than physically hurt the other person. But still awful.

[–]RebeccaDeW[S] 0 points1 point2 points 9 years ago (8 children) | Copy Link

But you can consent to one type of sex and not another, no? If you consent to vaginal sex that doesn't mean it's okay to force anal. If you consent to protected sex, that doesn't mean you've consented to bareback.

[–]DevilishRogue 0 points1 point2 points 9 years ago (7 children) | Copy Link

Try using that as a guy against a woman who lied about contraception and see how far that gets you in court. If you consent to PIV, you consent to PIV. If you want to place conditions on that then you're immediately entering murky territory. What if the condom breaks? What if it comes off? What if it stays on but you somehow end up pregnant due to seepage? Why blame the guy and not the woman? Was Seth Rogan assaulting Katherine Heigl in the movie Knocked Up? Consent is simple, either you do or you don't. Complicating it gets into grey areas where the only truth is that there is reasonable doubt.

[–][deleted] 0 points1 point2 points 9 years ago (5 children) | Copy Link

Was Seth Rogan assaulting Katherine Heigl in the movie Knocked Up?

Of course not, because he didn't purposely remove the condom. It fell off accidentally.

I don't think you're grasping the whole concept of stealthing. It is the willful act of removing the condom without the knowledge or consent of the partner. That is a crime, and in places where it isn't deemed one, it should be.

[–]DevilishRogue 0 points1 point2 points 9 years ago (4 children) | Copy Link

How do you prove it beyond a reasonable doubt? How do you determine whether it was accidental or intentional? What if there was a misunderstanding? I'm not the one here who seems not to be getting that whether something is a shitty thing to do or not is quite distinct from whether or not it is something that can ever be proven in a court of law beyond a reasonable doubt, let alone whether it should be.

[–][deleted] 0 points1 point2 points 9 years ago (3 children) | Copy Link

How do you prove it beyond a reasonable doubt?

Probably the same way you prove a woman lied about being on the pill. 99.9% of the time, you can't.

No one's arguing that you should be able to make an accusation of stealthing and the dude should be convicted on the spot. We're just arguing the point that stealthing is in fact sexual assault.

The likelihood of actually being found guilty is extremely low.

[–]RebeccaDeW[S] 0 points1 point2 points 9 years ago (2 children) | Copy Link

Surely you could blood/urine test a woman to see if she was on the pill?

[–]Imnotmrabut 0 points1 point2 points 9 years ago (2 children) | Copy Link

Would you prefer a Tin Foil Tiara? Why be unfashionable in the bunker these days?

There is the cat in hat option too P¬))

[–]RebeccaDeW[S] 0 points1 point2 points 9 years ago (1 child) | Copy Link

I love LOVE a tiara.

[–]Imnotmrabut 0 points1 point2 points 9 years ago (0 children) | Copy Link

Well If It's good enough for Mr Obama, you can have one too! P¬))

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