Consent: when is it present?

[Pure]

As sweetsubsarah says this arises when people do not know each other.


This is a bit of another thread on rape and terrorism at the Author's Hangout. Sarah has agreed to this reposting for discussion.


Sweetsub said,

You've taken her out to dinner and dancing. You've flirted all evening. You want sex, she wants sex. She even told you she wanted sex. You're at one or the other's apartments, clothes are off, you're writhing on the bed and about to penetrate her and then she says STOP.

If you continue it is rape.

You can call her a cocktease, a bitch, a whore, or worse. Fine.

You can piss and bitch and moan that you spent money on this woman (even though you asked her out in the first place) as if that somehow entitles you to get laid. Hire a hooker if you believe you deserve nookie just because you bought her steak and a salad.

But if you decide in your mind she really DOES want to have sex (as if somehow you know her mind better than she does?) And this is after she told you NO and still you hold her down and shove on in, it is rape. And a felony.

And you should be in jail.
------

I, Pure, replied: I have no problem with this 'stop' concept and indeed it's happened, and I've stopped. OK, so I'm with you in principle.

But consider this example:

3) I modify yours as follows

I've taken her out to dinner and dancing. I've flirted all evening. I want sex, she wants sex.

She has even told me she wants sex and likes sometimes a sense of its being forced upon her. She's at my aparment, clothes are off and some 'making out' ensues. During that, I try something (short of penetration), and she physically resists. I overcome that resistance and in doing the thing, I notice her responding strongly, and further that she continues the session."

From there on it ensues as Sarah says; she say 'no' at the point of penetration. I ignore that [and use a degree or force or roughness]. [I encounter a minute or two of mild physical resistance], but we continue to intercourse, which she appears to participate in. Is it rape? [revised]

===
Question: Is this rape (forced sex occurring without consent)?

Sarah already replied, but I have reworded things a bit, so I will not reproduce her old reply.

 

[catalina_francisco]

In the eyes of the law it is, and would have to say I also would class it as rape.

Catalina

 

[SensualMaitre]

In the eyes of human respect...

it is also wrong.
we are humans with minds, and not animals, in general (and reconciling our animal instincts with our mental psyches is one of our biggest challenges); so if "you" do not "know" the mind of this person well enough to understand what "stop" meant then "you" are in the wrong.
If "you" had got to know her mind, had built an element of trust, in however short a time (I've met women who have trusted me within an hour and others who haven't after months), and had commenced some real "communication" you would either know what "stop" meant in her mind or... having known where you each were in a submissive-dominanant sense "you" would probably have discussed the concept of a "safe word". If "stop" were that safe word, to continue would also be wrong!!
"Communication" is always the issue to judge a person's mind; if "you" asked her "at the point of penetration" if she "liked it" and you got acknowledgment then it would be ok; if not, you would be wrong to continue. This applies, in my view, to any practice we may like to embark upon sexually (whether it be sensitivity to the way you might caress her nipples to whether she would like to be pleasured anally)... all demand a form of request for consent or a response to "yes"... or "no".

 

[Netzach]

Whatever that person decides it is and tells the police is going to matter most to you - what you think it is in this situation counts for nothing.

I'd say if it *is* consensual the communication is so lacking and so ambiguous that you're opening yourself up to a universe of problems. You have no way of knowing if she's into "the game" or if she's flashing back to another rape and mentally checking out of the situation she's in.

I'd say it is in this case for lack of any perspective from the woman. It's either rape or some really dangeous and manipulative first-date BS.

 

[FurryFury]

Even if the girl kisses you, asks you when you can do it again, thanks you for "pushing things," even marries you it can be considered rape. The likelihood of getting prosecuted is much less though.

Fury

 

[m wisdom]

Question: Is this rape (forced sex occurring without consent)?

Is it rape? Yes
Is there any intent to rape? No

And there is also the question why the girl said no, did she change her mind or was it planned all along. From a legal point I would say that the guy should be convicted of rape. And from a human point the girl might need, depending on the reason why she said no, psychological help.

 

[Pure]

Here's the other, fuller example.

Since some have complained of too little information in the previous example. I have revised it substantially so I will not quote sweetsubsarah's reply.


Example 4 (revised): I've taken her out to dinner and dancing. I've flirted all evening. I wanted sex, she wanted sex. She even told me she wanted sex, and thought she'd like it rough, though hadn't really had a chance to experience much of it. She's at my apartment, clothes are off, and we are making out. We are writhing on the bed, and I start to get rough; using a small amount of force I am on the verge of penetrating her and she says, 'I don't know if this is right for me.'

She does not move to end the session, but continues the 'making out,' appearing to enjoy a degree of roughness. Then at the second attempt she resists momentarily (without saying anything), and I proceed past it. She cooperates in intercourse, offers no further resistance; indeed, to all appearances, seems to be 'getting into it'; she moves, shows signs of pleasure, and even says, afterwards, surprised, hesitant smile, "Wow!"

However, later that evening, at her home, she is struck with lots of guilt. She comes to think that even if she enjoyed it, she shouldn't have because she was (though she didn't know it at the time) demeaned. Her best friend calls and asks, 'what is the matter?'

She says, 'We talked of 'rough sex' and I kind of wanted it. But then after it was moving along, I didn't *really* want to.'

The friend says, 'What do you mean "really want"? Did you express doubts?'

She say, "Yes. I have to admit I had some pleasure at the time, but afterwards I realized I'd been really demeaned."

He friend says, "if you didn't want it, and said so, it was rape; call the police."

"I didn't really want it and said so. So I will take your advice." She calls the police and reports a rape.
[end]

Was she raped? Did she consent?

 

[Shankara20]

During that, I try something (short of penetration), and she physically resists. I overcome that resistance and in doing the thing, I notice her responding strongly, and further that she continues the session."

From there on it ensues as Sarah says; she say 'no' at the point of penetration. I ignore that [and use a degree or force or roughness]. [I encounter a minute or two of mild physical resistance], but we continue to intercourse, which she appears to participate in. Is it rape? [revised]

===
Question: Is this rape (forced sex occurring without consent)?

Sarah already replied, but I have reworded things a bit, so I will not reproduce her old reply.

"During that, I try something (short of penetration), and she physically resists. I overcome that resistance"

without her clear verbal consent to continue it can be considered rape.

"I notice her responding strongly, and further that she continues the session." "

are you making the decision for her? How did she respond? A girl being raped by her father may have physical responses others might call "being turned on" - she is not "wanting it" the act is rape.

if a boy is being sexually assaulted by an authority figure he can not resist, and the boy has an erection is he being abused? raped? yes he is.

A rape scene is a tricky thing. It must be negotiated in advance with clear limits and safe-words established - she can say no no no as part of the scene, but when she calls "stop" that is it.



.

 

[ObsidianRose]

I think this situation is further complicated within a BDSM context. There are many people in the BDSM scene who enjoy the illusion of (or, perhaps even actual non-consentual) forced sex. Myself included, though I always require some sort of consent.

The situation can be particularly hairy when a woman who says that she wants, craves or even needs forced sex, for whatever reason, abruptly changes her mind. What if screaming "NO" is just part of a scene for her? How do you know if she wants you to stop or continue.

This is where safewords come into play. Since screaming "NO", or even, "GET THE FUCK OFF ME!" may not actually be a plea for relief, your safeword should be something completely removed from a sexual context. In my case, "popcorn".

Safewords are standard practice in the BDSM community, but I wonder how it would work for Vanilla encounters. How akward would it be to be out on your average, everyday Vanilla date and you get back to the apartment and say, "By the way....my safeword is 'popcorn'? LOL

Very odd I suppose, but if it keeps everything safe, sane, and consensual, perhaps it SHOULD be standard practice for everyone.

 

[Recidiva]

I agree with Nezatch that the only real question here is legal. It is completely subjective in this case and only the violated know the depth to which they feel it or fake it.

I agree with ObsidianRose that safewords are exactly for this purpose. Like to play with fire? Have a verbal extinguisher ready.

If people can agree that you have to stop if someone uses a safe word, how is it possible to not stop if someone says no? Even to make up a safe word?

 

[FurryFury]

Since some have complained of too little information in the previous example. I have revised it substantially so I will not quote sweetsubsarah's reply.


Example 4 (revised): I've taken her out to dinner and dancing. I've flirted all evening. I wanted sex, she wanted sex. She even told me she wanted sex, and thought she'd like it rough, though hadn't really had a chance to experience much of it. She's at my apartment, clothes are off, and we are making out. We are writhing on the bed, and I start to get rough; using a small amount of force I am on the verge of penetrating her and she says, 'I don't know if this is right for me.'

She does not move to end the session, but continues the 'making out,' appearing to enjoy a degree of roughness. Then at the second attempt she resists momentarily (without saying anything), and I proceed past it. She cooperates in intercourse, offers no further resistance; indeed, to all appearances, seems to be 'getting into it'; she moves, shows signs of pleasure, and even says, afterwards, surprised, hesitant smile, "Wow!"

However, later that evening, at her home, she is struck with lots of guilt. She comes to think that even if she enjoyed it, she shouldn't have because she was (though she didn't know it at the time) demeaned. Her best friend calls and asks, 'what is the matter?'

She says, 'We talked of 'rough sex' and I kind of wanted it. But then after it was moving along, I didn't *really* want to.'

The friend says, 'What do you mean "really want"? Did you express doubts?'

She say, "Yes. I have to admit I had some pleasure at the time, but afterwards I realized I'd been really demeaned."

He friend says, "if you didn't want it, and said so, it was rape; call the police."

"I didn't really want it and said so. So I will take your advice." She calls the police and reports a rape.
[end]

Was she raped? Did she consent?

The details don't really matter that much, regardless, no still means no. Unless it is a BDSM relationship and you both know that no and anything else means noting, only her safe word. Otherwise, if you don't stop you are potentially opening yourself to legal consequences.

If you do stop and she didn't really mean no, then I suspect she will let you know.

That's my 2 cents.

Fury

 

[Thrall_67]

Has BDSM ever been on trial ????

i have a question to further this discussion........
Has anyone heard of a court case where a BDSM encounter (specifically players in the scene) have been taken to court or tried for this type of scenerio?

Example: Two people into kink have agreed to a "mock rape" or "take down" scene that went wrong - either pre-arranged safewords were ignored or the amount of "corporal" went too far in the mind of the "rapee" and the police were called? What was the conclusion? i ask because BDSM is becoming more popular and "newbies" could end up in bad situations if they are not careful. Were the police understanding of the BDSM scene or was the response "Honey, you made your bed........."?

It's gotta be a tough call for authorities in some cases - i've left a scene (happily and safely in my mind) covered in bruises, bleeding slightly, busted lips and with huge welts on my body......

i guess this is why the "danger" is not just a thing for subs - DOM's gotta be concerned that things may turn out bad if the sub doesn't understand his/her own limits or was looking for more than just a scene (ie - married, kids, white picket fence) while the DOM was only having fun.......

 

[m wisdom]

Example 4 (revised):
...
Was she raped? Did she consent?

Legally this is different in different countries, she doesnt say no and have said she wants sex earlier. In Sweden the guy could get convicted of rape since she didn't say yes. Not sure how the law is on consent issues in other countries.

However, (imoo) since the intent is not to rape her and there is no clear stop signal this would not be rape.

 

[Pure]

note to furry

Example 4 "I didn't really want it and said so. So I will take your advice." She calls the police and reports a rape.
[end]

P: Was she raped? Did she consent?

F: The details don't really matter that much, regardless, no still means no. Unless it is a BDSM relationship and you both know that no and anything else means noting, only her safe word. Otherwise, if you don't stop you are potentially opening yourself to legal consequences.

---
Well, she didn't say 'no' she said, 'I don't know if this is right for me.' and ultimately cooperated.

 

[FurryFury]

Example 4 "I didn't really want it and said so. So I will take your advice." She calls the police and reports a rape.
[end]

P: Was she raped? Did she consent?

F: The details don't really matter that much, regardless, no still means no. Unless it is a BDSM relationship and you both know that no and anything else means noting, only her safe word. Otherwise, if you don't stop you are potentially opening yourself to legal consequences.

---
Well, she didn't say 'no' she said, 'I don't know if this is right for me.' and ultimately cooperated.

Gotcha, still, I'd rather be safe than sorry in such cases. If they are just playing games they can damn well play them elsewhere is probably the mindset I'd take in the same situation.

Fury

 

[ladyblaze]

no means no.........

You are saying "i thought", "it seemed".........communication was lacking

feeling guilty is one thing.........feeling raped, and with that the necessity to call the police .......is another

with the lifestyle often comes a "safe" word, a prearranged "word", arranged thru communication.......in the senerio set forth it seems that communication was not there.......

play it "safe"........if Your ganna play rough

 

[Pure]

Yes, Thrall, it's happened

Thralli have a question to further this discussion........
Has anyone heard of a court case where a BDSM encounter (specifically players in the scene) have been taken to court or tried for this type of scenerio?

P: It's happened not just in the gray area of maybe consent, or someone's afterwards deciding it went too far or they didn't want it.

Fully 'consensual' BDSM encounters have been prosecuted where there is bodily harm, on the basis of the axiom that non trivial bodily harm cannot be consented to. (So "yes, do it" does not mean "yes.")

There are threads on this topic, and I don't have url's handy right now, but if you Google the "Spanner" [R. v. Brown 1993] case in Britain, that is a famous example that went through the entire Brit court system and even the EU.
Wikipedia, under 'consent' has some leads and mentions a bdsm case, as well:

http://en.wikipedia.org/wiki/Consent_(criminal)

[start verbatim quote]
Consent to sexual assaults

For sado-masochism, R v Boyea (1992) 156 JPR 505 was another application of the ratio decidendi in Donovan that even if she had actually consented to injury by allowing the defendant to put his hand into her vagina and twist it, causing internal and external injuries to her vagina and bruising on her pubis, the woman's consent (if any) would have been irrelevant.

The court took judicial notice of the change in social attitudes to sexual matters but, "the extent of the violence inflicted… went far beyond the risk of minor injury to which, if she did consent, her consent would have been a defence". In R v Brown (1993) 2 All ER 75 the House of Lords rejected the defense on public policy grounds (see below).

This is an application of the general rule that, once an actus reus with an appropriate mens rea has been established, no defense can be admitted but the evidence may be admitted to mitigate the sentence. This decision was confirmed in the ECHR in Laskey v United Kingdom (1997) 24 EHRR 34 on the basis that although the prosecution might have constituted an interference with the private lives of those involved, it was justified for the protection of public health.

In R v Emmett (unreported, 18th June 1999), as part of their consensual sexual activity, the woman allowed her partner to cover her head with a plastic bag, tying it tightly at the neck. On a different occasion, she agreed that he could pour fuel from a lighter onto her breasts and set fire to the fuel. On the first occasion, she was at risk of death, and lost consciousness. On the second, she suffered burns, which became infected.

The court applied Brown and ruled that the woman's consent to these events did not provide a defence for her partner. The general rule, therefore, is that violence involving the deliberate and intentional infliction of bodily harm is and remains unlawful notwithstanding that its purpose is the sexual gratification of one or both participants. Notwithstanding their sexual overtones, these cases are considered to be violent crimes and it is not an excuse that one partner consents.
[end quote--excerpt from longer article]

 

[rosco rathbone]

Whatever that person decides it is and tells the police is going to matter most to you - what you think it is in this situation counts for nothing.

I'd say if it *is* consensual the communication is so lacking and so ambiguous that you're opening yourself up to a universe of problems. You have no way of knowing if she's into "the game" or if she's flashing back to another rape and mentally checking out of the situation she's in.

I'd say it is in this case for lack of any perspective from the woman. It's either rape or some really dangeous and manipulative first-date BS.

Good post.

I've forced sex on people who were screaming NO, but it was in context of a long history of trust. I've also been told, "I like that you don't listen when I say no, even if I sound like I really mean it--even though I DID mean it at the time." Obviously, this is pretty dangerous ground to be on.

 

[Recidiva]

Good post.

I've forced sex on people who were screaming NO, but it was in context of a long history of trust. I've also been told, "I like that you don't listen when I say no, even if I sound like I really mean it--even though I DID mean it at the time." Obviously, this is pretty dangerous ground to be on.

Well, this has got a history and the equivalent of being a high wire act that goes without a net.

What would you have done had the person in question claimed rape?

 

[rosco rathbone]

Well, this has got a history and the equivalent of being a high wire act that goes without a net.

What would you have done had the person in question claimed rape?

I'd have been fucked.

 

[Recidiva]

I'd have been fucked.

Yeah, that's the unfortunate fact.

Have to choose your high-tension partners carefully. Glad you didn't fall.

 

[rosco rathbone]

Yeah, that's the unfortunate fact.

Have to choose your high-tension partners carefully. Glad you didn't fall.

Exactly. I have a lot of faith in my instincts.

As always, when it comes to discussion of consensual nonconsensuality...don't try this at home, kids.

 

[Netzach]

Good post.

I've forced sex on people who were screaming NO, but it was in context of a long history of trust. I've also been told, "I like that you don't listen when I say no, even if I sound like I really mean it--even though I DID mean it at the time." Obviously, this is pretty dangerous ground to be on.

Hey consensual NC is fun, hot, edgy, when developed over time so that it's clear that what's going on IS desired. I feel you here. But yeah, it is precarious ground and it IS one of those things that really is best, better in fact, when established at some point as "ok." Besides there's got to be something really hot and bothering about your lover telling you "hey it would be really hot if you jumped on me and nailed me to the floor, even if I was like "no, no!"

 

[Pure]

RR: // I've forced sex on people who were screaming NO, but it was in context of a long history of trust. I've also been told, "I like that you don't listen when I say no, even if I sound like I really mean it--even though I DID mean it at the time." Obviously, this is pretty dangerous ground to be on. //

Recidiva: Well, this has got a history and the equivalent of being a high wire act that goes without a net.

What would you have done had the person in question claimed rape?


RR:// I'd have been fucked. //

There is that possibility, but a good lawyer would undermine her claim in a number of ways. Such as (we will assume for the sake of argument):
She went to your place or invited you to hers. There was a discussion of rough sex and indications that she liked it. There were several consensual sexual acts before the one in question. That, despite the 'no' the particular act was participated in enthusiastically. That immediately after the act there was a friendly exchange (I.e., no 'you just raped me.').

I have a sense that a DA is not going to want to go to trial with a woman who professed to like SM, and enjoyed several acts with a fellow, but objected to one of them (and had her 'no' interpreted as 'i protest, but don't stop'). That raises an additional point. This 'no' is not coming out of the blue. Perhaps it arguable that a 'reasonable person' might have taken it to be part of the 'play'. [or in Netzach's terms, it was understood as consensual nonconsent]. IOW, honest mistake.

[[Added: I'm making an assumption that the particular act was not seriously injurious, as in the Wikipedia example of lighter fluid on the breasts. In that case of injury, yes, you're fucked, because there's reason to suppose that that amount of danger (for that act) was way above the minor danger of the others, and she'd have reason to draw the line.]]


This is not a suggestion of a reckless policiy to ignore statements from one's partner about what is and is not desired, just a suggestion that the whole context of the relationship and its history has to be considered.

NOTE: RR's example is different from my examples 3 and 4. 3 had a transitory 'no', and 4 did not have any 'no.'

 

[Pure]

Comment to Netzach

RR: I've forced sex on people who were screaming NO, but it was in context of a long history of trust. I've also been told, "I like that you don't listen when I say no, even if I sound like I really mean it--even though I DID mean it at the time." Obviously, this is pretty dangerous ground to be on.

Netz Hey consensual NC is fun, hot, edgy, when developed over time so that it's clear that what's going on IS desired.

I think RR's example can be interpreted another way, besides (possible) consensual nonconsent. You comment makes it clear you're thinking of what I'd call 'blanket consent' or 'session consent' and these both involve prior statements of 'I'd like this' or 'I agree to this.'

Besides there's got to be something really hot and bothering about your lover telling you "hey it would be really hot if you jumped on me and nailed me to the floor, even if I was like "no, no!"

RR's example is of unexpected gratification/enjoyment following (apparent) nonconsent. This is dicey because it's well known that rape produces reactions, even orgasms occasionally, and this 'enjoyment' is objectionable to the person (and does not rule out a crime having occurred). But here the gratification/enjoyment, though forced is real and there is no later "I hated that", quite the contrary. This makes the 'victim' possibly unwilling to proceed to complain. I don't know the legal term for this, but it's kinda like your car disappears for a couple hours; it appears the neighbor took it without asking; however, just when you're gonna call the cops, he drives up with a big new widescreen TV for you (there was a fire sale, and he had no chance to track you down to get permission).