Rape should not include regretted sex, obviously, but I am curious as to the opinions about the following.

bad_keisatsu · 2010-04-06T23:07:16+00:00

EDIT2: This gets more interesting as I delve into the rabbit hole.

When reading the penal code, consent is only mentioned in the sense that a mentally disabled person is incapable of granting consent. It appears that lack of consent must be accompanied with "means of force, violence, duress, menace, or fear of bodily injury." Presumably, a man would have to use force, violence, duress, menace or fear of bodily injury if the woman did not grant consent. (for instance, a woman could say she doesn't grant consent with the man, but then when she participated in sex with him afterward it would not be rape. In other words, no can mean yes).
Another reply pointed out 4(c) "Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact." What does this mean? The question in my mind is, what are the "essential characteristics" of the act? I did some google searches and cannot find a satisfactory definition, but to me, the essential characteristics of sex are penile to vaginal penetration. Is wearing a condom an essential characteristic? If so, then the scenario could be considered rape by means of fraud.

That's only rape if you can say a woman who goes off her birth control without telling her boyfriend also committed rape.

... but in legal terms, this is not rape. The penal code is very specific on the definition of rape. I will point you to the CA penal code. (too long to quote, it is section 261).

http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=595406577+1+0+0&WAISaction=retrieve

Your scenario does not meet any of the subsections of rape, therefore it is not rape. It is a crappy thing to do, but not rape.

Let's take another hypothetical scenario: woman agrees to have sex but only if he agrees to pull out. Man cums inside her. Rape? Nope. Not rape either.

EDIT: It appears my link is broken. Here is the text of the penal code for rape for reference.

(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: (1) Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent. (2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. (3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused. (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, "unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions: (A) Was unconscious or asleep. (B) Was not aware, knowing, perceiving, or cognizant that the act occurred. (C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact. (D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose. (5) Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief. (6) Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, "threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death. (7) Where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, "public official" means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official. (b) As used in this section, "duress" means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress. (c) As used in this section, "menace" means any threat, declaration, or act which shows an intention to inflict an injury upon another.

PShap · 2010-04-06T21:18:23+00:00

I think I'd categorize it under something like "reckless endangerment". It's seriously not ok because of health concerns, and deserves heavy punishment. If the guy knew he had an STD or something, the charge should get correspondingly heavier.

But it's still consensual sex, and doesn't really (usually, you have to talk in generalities for this sort of thing) carry the same emotional damage as an actual rape.

I'm thinking in the same terms as if a guy lied about having a vasectomy or being tested clean for STD's when he hadnt had himself tested lately. Not rape, but still bad and deserving of criminal punishment.

PierceHarlan · 2010-04-06T21:33:33+00:00

The consent to intercourse was conditioned on the use of a condom. Under most state statutes it likely would be considered one kind of sexual assault or other.

This query illustrates the need for a much broader range of sanctions to cover sexual misconduct than currently exists. So much of our sentencing for male sex offenses is wholly lacking in proportionality. I can envision some states punishing this misconduct with greater severity than it would punish a convenience store robber, which is silly. I do not think it is appropriate for the offender here to serve a felony sentence the same as a violent rapist who forces intercourse wholly against the will of a victim. The act described here was selfish, but would lack some of the more awful elements of rape -- namely, it would not rob the victim of her dignity by an invasive bodily assault.

Thirsty101 · 2010-04-07T04:54:32+00:00

In the UK, under the sexual offences act 2003 that would be rape, because consent was dependant on the use of the condom. Therefore when the condom was removed the conditional consent no longer applied as it changes the nature of the act. Protected sex, unprotected sex.

I also think that in this regard the law is correct.

cryptogirl · 2010-04-07T19:53:08+00:00

As a law student, the best I can tell you about "where it falls on the legal spectrum" is a function of where you live, as rape laws vary somewhat widely across different jurisdictions.

As a human being, I offer my hugs and support (warning guys --2XC moment). Something very similar happened to me also, with the added caveat that I was almost blackout drunk (but still more than willing to engage in what I believed was protected sex). Regardless of the legal issues, I can't say I feel I've been raped, even though I've been in more than one situation that would fall under the definition of "gray rape." I've definitely felt violated -- in the situation I mentioned, when I realized what was happening I stopped it immediately, and gave the guy a good dose of my anger -- but I didn't call the cops, or pursue any kind of legal action. We were both drunk, we both wanted basically the same thing (sex), and we both made some pretty stupid decisions.

In all candor, it's possible that some of my thoughts on this are defense mechanisms; I don't want to have been raped, and so it's easier for me maybe if I conceptualize what happened to me in different terms. What happened has definitely taken an emotional toll on me, but on the other hand, I don't really feel that the guy deserves the punishments our society specially reserves for rapists.

TLDR: It's complicated, and I'm still working through it.

To all the guys out there: always carry condoms (plural!), use them, and if you ever are in a situation where unprotected sex seems imminent, make damn sure your partner is consenting to unprotected sex.

kloo2yoo · 2010-04-06T22:30:16+00:00

what about the reverse? What if she said she's on the pill, or has a diaphragm, or a female condom, or the sponge, etc. and is not?

Nokonoko · 2010-04-06T22:49:00+00:00

It's fucked up, but it's not rape. If you invite someone into your home but tell them to take their shoes off, you can't say they're trespassing simply because they put their shoes back on...you have to tell them to leave first. While it's a bit more serious than a bit of dirt on the floor, the logic behind it still applies. She's consented to sex (invited him in)...unless she rescinds that consent (tells him to leave), it's not rape.

2010-04-06T22:25:49+00:00

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crookers · 2010-04-07T06:42:22+00:00

Sounds like fraud to me.

rhllor · 2010-04-07T09:11:09+00:00

On a tangential vein, this occurred to me: What if one of the parties, particularly the female, withdraws consent in the middle of the act? I just read a scary court decision wherein the jury decided that it's not rape - implying that once you have said yes, you are effectively surrendering control of your own body to your partner until he climaxes, whether you want to or not.

Gareth321 · 2010-04-06T23:55:12+00:00

Your question made me consider the countless men who have been tricked into being a father by a woman who stopped taking her birth control without tellin him. Have they been raped?

weirdboobs · 2010-04-06T21:14:17+00:00

I think that would be assault, not rape. It's also called stupidity. I hope the guys who did that to you now have several kids and diseases that they got from their clever antics.

flip69 · 2010-04-06T22:43:02+00:00

Interesting.

It's not rape.

I believe that "Rape" is the forced taking of another against their will in a violent and brutal manner.

This is a situation where both parties agreed to engage in sexual intercourse.

If the condom is manually removed (or even slips off) and the female or male partner doesn't clearly object to continued activity then I would say that penalties would apply if there was some injury involved (increased with conception / disease).

IF either partner were to clearly objected with force and that the other partner ignored and forced continued intercourse then there should be some grievance there for additional compensation perhaps in civil or criminal court.

Rape is an extremely powerful word that is overused in many instances .. I believe that our modern culture should develop some more subtile understandings and names for all the grey areas that can come into play for these complex type of relations between people... There's been too many cases where no means yes and too many women want to be tied down restrained with new partners to add excitement to the encounter... but at extreme risk for the male. There are no easy answers for any of this.... I really wish there were.

falsehood · 2010-04-06T22:32:23+00:00

If consent includes a specific condition that a condom is included, than I think you could make the case that it was rape. If consent was given with the assumption that there would be a condom, then it's a dick move that might be reckless endangerment?

2010-04-07T04:02:25+00:00

Lets not get carried away with re-defining rape. Sure, the no-condom and no-pill sex are a valid comparison, but only as a reductio ad absurdum.

I as much as anyone here would love to see conception by deceit to have legal consequences for women, but lets not jump on the grey-rape bandwagon. I think we have more integrity and rationality than that.

BaseballGuyCAA · 2010-04-07T06:25:08+00:00

Not much grey area. The condition for consent was the condom. Considering the health and pregnancy risks, it's a reasonable condition--just like if you don't have one, your condition can be that she is on the pill.

Please, nobody reading this actually do that, though. That's just a dick move all around.

InfinitelyThirsting · 2010-04-07T07:26:22+00:00

I do believe that was my comment you were referring to. I'm finding the discussion (most of it anyway) regarding my experience quite interesting. Thanks!

VoodooIdol · 2010-04-07T14:59:07+00:00

Personally, I would categorize it as "sexual assault".

Livin_The_Dream · 2010-04-07T17:07:53+00:00

Rape by definition is committing a sexual act without the consent of the person. If she says no to sex without a condom that constitutes rape by definition.

rockidol · 2010-04-08T04:48:30+00:00

It's not rape it's merely err not holding up your end of the bargain.

This would be like refusing to pay for a prostitute afterwords. It should be punished but it isn't rape.

And assuming she doesn't get pregnant or an STD from this I'd personally think that this would be too much of a mild crime to bother the police about but that's just me.

mct137 · 2010-04-07T01:58:26+00:00

It's not a grey area at all. If a woman, or the man (since you point out it is a pregnancy/health issue whether the condom is on or not) consents to sex on the condition a condom is used, taking it off negates all consent, and new consent is required. If a man got a woman to consent to sex with the condition a condom would be worn, once the condom is off, the woman has to consent or it can be rape.

We could turn this around and say that if a man consented to sex with a woman with the condition he could wear a condom, and she somehow purposely broke the condom without his knowledge and got pregnant, should the man be responsible for the child, or abortion costs? I would say no.

Consent is in essence a contract, and any violation of the conditions of consent is a violation of the consent (contract) itself.

catdad · 2010-04-07T00:08:40+00:00

It's interesting. I think it's clearly rape if the condom was taken off without a womans knowledge, or the mans for that matter, if the sex was conditional upon condom usage. If the condom wasn't discussed, it sure as hell is dirty, but I don't know about rape. Another interesting thought is, let's say the roles were reversed and a woman taking birth control is the condition for sex. If she lies and has not taken the pill, does that become rape? It's obviously different because of the whole STD thing, but interesting nonetheless.

jelliedbabies · 2010-04-06T22:59:57+00:00

Not in the least its just being a dick. Could be assault if he has an sti but only an asshole would think its anywhere near rape.

2010-04-07T02:42:13+00:00

It's not rape. QED.

InfinitelyThirsting · 2010-04-07T18:33:00+00:00

I would not say taking off a condom is rape, because it is not. But it can become rape if she does not conscent and he continues anyway.

And to be honest, I do not think this is a real problem. The problem some women get the "regret they had sex" feeling the next morning, or a couple of days later, and then decide they were "raped".

InfinitelyThirsting · 2010-04-06T21:22:53+00:00

[permanently deleted]

sli · 2010-04-06T21:02:59+00:00

Giggity.

And now back to your regularly scheduled thread.

WebZen · 2010-04-07T00:58:25+00:00

If you lie to get sex then it's rape. There can be exceptions, but it's rare. (The only exception I can think of is if the woman somehow manipulates the man into lying. In that case the lie is still wrong, but her behavior must also be considered and calling it rape is way harsh.)

Title	Rape should not include regretted sex, obviously, but I am curious as to the opinions about the following.
Author	InfinitelyThirsting
Upvotes	44
Comments	130
Date	April 6, 2010 8:58 PM UTC (16 years ago)
Subreddit	Posted in /r/MensRights
Original Link	https://old.reddit.com/r/MensRights/comments/bnb4d/rape_should_not_include_regretted_sex_obviously/
Archive Link	https://theredarchive.com/r/MensRights/rape-should-not-include-regretted-sex-obviously.1049966 https://theredarchive.com/post/1049966

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