Are we seriously still asking this question?

Over at the New York Times, Katrin Benhold is asking “is it rape?” if you have sex with a woman while she’s sleeping. Really, though? This is confusing for people? Yes, if you penetrate someone while they’re asleep and they therefore could not possibly have consented to being penetrated, that is rape. I’m pretty sure that if I were having a sleep-over with a dude and he woke up to find that I had stuck a dildo in him, there wouldn’t be much question as to whether or not that was an assault — even if he had consented to having sex with me the night before.

As Lindsay says, unconscious people can’t consent to anything
. Think of it like this: Your partner might have consented to your feeding him chocolate cake for dessert. It doesn’t mean you can shove it down his throat while he’s sleeping. In fact, if he woke up to you shoving chocolate cake down his throat while he was sleeping, he would probably be very upset, because that shit does not feel good when you aren’t ready for it, even if you usually really like chocolate cake. And I think we would all agree that someone who forcefully shoves cake down the throat of a sleeping person is beyond terrible and also a dangerous person, and that reporting such a person doesn’t “cheapen” any other accusations of attempted smothering or asphyxiation.

So, yes: Putting a penis (or a finger or whatever else) into an unconscious person is rape. Next up, the New York Times tackles the tough question of whether it’s really assault to punch someone in the face if they let you touch their cheek the day before.

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45 comments for “Are we seriously still asking this question?

  1. Nahida
    December 29, 2010 at 4:00 pm

    I don’t believe this either.

  2. Cassie
    December 29, 2010 at 4:23 pm

    I don’t even understand why you would want to have sex with someone while they were asleep… unless you don’t think they would consent if they were awake and getting your rocks off is more important than having a willing partner, of course.

  3. Tony
    December 29, 2010 at 4:26 pm

    When it comes to things like this, people have knee-jerk reactions based on the misconception that rape must be a dramatically violent assault, and so anything that falls short of that seems “not so bad,” even when the consequences for the woman in this case are unprotected potential exposure to diseases or pregnancy, where she had previously apparently argued all night with Assange insisting that he wear a condom precisely so she would not be so exposed.

    Also, the common characterization of Assange’s offense as “he had sex with her without a condom” or “he had sex with her while she was asleep” fail to capture the whole scenario. To understand how bad this was you have to have the whole scenario explained from the beginning in more than a couple sentences. Combine this with the aforementioned misconception about rape (also mentioned in the article) and you have the knee jerk reaction evinced by the columnist’s girlfriends. At least that’s my guess.

    This article compares the law on rape between various European countries. Jill, as a feminist lawyer can you tell us where does the US fit into the spectrum?

  4. Paraxeni
    December 29, 2010 at 5:00 pm

    We all know it’s only really, truly Real Rape™ if you’re a modestly-dressed, sober, pretty, slim virgin girl walking somewhere at night, and he is a stranger.

    Any deviation from that exact scenario is subject to being defined as not-Real Rape™.

    Nnnnggghhhh. Signed “You should consider yourself lucky. Did you ask for their numbers?”*

    *disclosure – it was group SA, no penetration occurred.

  5. Tony
    December 29, 2010 at 5:02 pm

    Never mind. Of course the US has 50 different standards.

  6. corn walker
    December 29, 2010 at 5:32 pm

    I am a bit confused about the scenario. Can someone, without the aid of drugs or extreme sleep deprivation, actually sleep through someone having sex with them? I would like to think I’d wake up and say, “get the eff off of me!” (especially if there’s a surprise dildo in my butt) but maybe there’s some condition where that doesn’t happen. This case is so hard to prognosticate about at a distance. Some scenarios as presented are clearly rape, others aren’t so clear. And we (as in you and I sitting 3000+ miles away) have no way of knowing which scenarios are closer to the truth.

    Not necessarily in the Assange case, but in the course of a LTR one might consider certain nuances to sex while sleeping. For example, I might provide general consent to my partner initiating while I’m asleep, while reserving the right to say no at any point and have my partner respect that. And I don’t want to deny others who, in a consensual manner, want to fulfill some fantasy of having sex with a sleeping partner, even if that’s not my cup of tea. As always, it seems that clear, explicit consent is the difference between “it’s all good” and “that sure sounds like rape.”

  7. December 29, 2010 at 5:36 pm

    (TW for rape description)

    Not Rape: I tell my boyfriend that I would like to be woken up with sex, actually, as long as he wore a condom. The next morning, he wakes me up with sex. Yay, orgasms are a lovely way to start the morning!

    Rape: I wake up and my boyfriend is having sex with me. I lie there uncomfortably pretending to be asleep until he finishes because I don’t want to make a fuss. I feel horribly violated and uncomfortable afterward

    What concerns me is that there seem to be a lot of people who can’t tell the difference.

  8. MissKate7511
    December 29, 2010 at 5:54 pm

    Okay, what IS IT with the idea that if a woman agrees to sex with a person once, she’s officially consented to any and all sexual acts that partner may decide to perform at any point in the future? It sounds dangerously close to the idea that rape can only happen to virgins (because once your virginity’s gone, there’s nothing left to lose, amirite?).

    It’s also patently fucking insane. I cannot fathom how this confuses people – people have sex. It’s (hopefully) consensual, it’s great/okay/godawful, and then it’s over*. It’s a discrete event. Consent, once given at the outset of one event, is not a Get Inside This Person Forever pass-card. Not. that. complicated.

    So, yeah, Paraxeni said it far better, but if I didn’t rant for a minute I was going to have to punch something.

    *Not saying that consent cannot be withdrawn during — it can be — just leaving out that possibility in this example for the sake of linearity.

  9. December 29, 2010 at 6:43 pm

    What a wank article. You just know that when one of the complainants is called ‘a WikiLeaks groupie’ what the rest of the tone of the article will be.
    Katrin Bennhold doesn’t even get the basics correct – just what is ‘British law’? There is no such thing. Scotland has recently updated it’s rape laws and has always had separate legislation to England and Wales. NI also has separate legislation.
    Bennhold also got her previous article on this wrong as well. She seemed to miss that Sweden has a very low rate of prosecution for rape in comparison to allegations. Something that Amnesty International have criticised. Stupid woman.

  10. Son Gohan
    December 29, 2010 at 7:08 pm

    I have never admitted this to anyone, especially in “public”, but I could not stop thinking about it for the last hour.
    ” I have been sexually assaulted by a man, and I am man.”
    I have never said that. to be honest, i was trying to remember the exact details so the story makes sense, but the more i tried to remember the less i wanted to remember; and i was drunk when it happened, so i am not sure if i remember a nightmare or facts (looking back on it, this is how i lived with myself for the last 15 years, not wanting to believe.)
    Long story short … i went to a party with a bunch of people i thought were friends, they were socially undesirable but still “friends”, i got really drunk, passed out surrounded by people, woke up (and this is where the alcohol and trauma makes remembering difficult, which is kind of a blessing) with a guys penis in my mouth and his hands on my head. i clearly remember being profoundly shocked and angry, i looked him in the eyes (and he was afraid) I stood up immediately and realized my pants were off! I was drunk, so i just remember basic thoughts and images, but i looked down, i was naked, i looked to my left and there was a guy there with a look on his face that i have never seen before (shock, pity, disgust, amazement); i looked around for my friends, they were all gone, there were girls there too looking, watching, (no one doing a thing about this), some of the girls even had the weirdest smiles on their faces, as if they were enjoying watching this (all the other guys also had looks of enjoyment on their faces, expect for the guy with the pity disgust look, but he didn’t do anything to stop it). by this time i was still so drunk and so confused (and probably due to psychological defense against trauma) that i just forgot about avenging my rape, i just focused on getting home. none of my friends were anywhere to be found,i was left all alone surrounded by dangerous people, i was in the middle of nowhere. so in true pathetic style, i went back to the only shelter i knew and if it was not for the pity-disgust guy i would not have made it home.
    I was in high school at the time and my mother said when she found me the next day that i was in the shower with the water running. i woke up the next day thinking that it was just a bad dream, until i ran into the guy that dropped me off, i did not recognize him but he did me, i did not believe him, but he had some of my stuff that i left at the “party”, so i had to believe him. he told me what all really happened and that they tried to have anal intercourse with me but that was too difficult, so they just raped my mouth, while towns people and fellow students were watching, even girls, they were all just laughing and watching no one did anything. I couldn’t believe it, i wouldn’t believe it, but i knew enough about high school that i was finished. i had a girlfriend at the time and i knew the degrees of separation were few between her and those involved so i told her we need to move oin and get the hell out of this town. we both had crappy blockbuster jobs, so we could afford to live on our own (working together), we promised that we would leave and never look back. but while you may be done with the past, the past is not done with you.
    we moved to a big city, finished HS, got and paid for our undergraduate degrees together and even got our Master’s degrees in science together; but while she was looking for a doctoral program and me a job, i noticed things had changed in our relationship (it was harder and harder to get her excited about sex and the look on her face when she looked at me went from pride and happiness to that same look i saw on those peoples faces when i was raped) i thought nothing of it, just time and its effects on relationships; or so i thought.
    she left her computer on one day, and while i was going to use it to find some job leads, i noticed she had a facebook account and that she was still logged in. i just glanced at her screen and that is when i saw them … she had befriended people from HS, breaking our promise, and some of those faces were the same faces that saw me get raped. i knew then i was undone. i knew then i had just wasted half my life on a girl who would never really love me (how could she? i was not only raped by some of the losers she knew in high school – making me MEGA -LOSER- but i was also a laughing stock to other females she wanted to be friends with) when i confronted her about her breaking the promise she insulted me in that subtle way females do that while not overt in declaration of me being a “punk bitch fag” but let me know that she had heard the stories and that she would never look at me the same way again, especially not as a man.
    i never accepted the fact that i was raped and i lost everything i valued because of it. in hindsight, IT IS ALL MY FAULT! i should have known better, i should not have trusted people, i should be able to handle my alcohol, i should not have drank in public, i should not have been friends with those kinds of people, i should have left her and everyone in that town alone, i should have known that you can never leave the past behind or if you try don’t take your girlfriend with you (she is a link to the past) i should have known better … now i do know better; when i drink i drink at home alone, when i go out i don’t drink, i don’t spend the night at peoples places anymore and any male friends that pass out at my place get dragged out to a taxi and dropped off at their property (if not house). girls get to know nothing about my past, i don’t ask about theirs and i expect the same, take me for who i am now.
    i almost want to cry, but then i think “why did no one help me? why were they smiling and laughing?”; and i have to say i deserved it. at the time (while not a true ladies man) i had made quite a few enemies. i had slept with guys girlfriends, sisters and even moms in some cases (in one guys case all three, it destroyed him); i was a man whore, and i would tell women anything to get them to want to have sex with me, and after a few weeks i would just dump them and act like a total dick. so i guess people were watching and laughing because they thought i deserved it.
    i don’t know what to say, i have never really talked about it, i want to cry but then i remember an Alaskan native girl that i cared for when i worked at a mental hospital, she was raped by the males in her own family for years (handed around like sex property) and when i found this out and asked her how she could smile and be happy and go on with life without being angry she said (honest to God) “shit happens, people are just like that.” words of wisdom from a 14 year old girl.
    Thanks for listening people, i have had a hard holiday season.

  11. December 29, 2010 at 7:23 pm

    Unfortunately, many people, including the writers at the Times, don’t seem to grasp that there is a major difference singular consent and implied consent. If for a hypothetical moment, there is a couple who enjoys sex-while-sleeping, and they have discussed in advance that they enjoy this pastime one way or the other and that it is alright for them to do this while one of the parties is asleep, that would be implied consent. ‘Implied’ meaning that although the sleeping person hasn’t consented in that moment to the particular act, they have consented in the past to engaging in that particular act in that particular way.

    That is very different from singularly consenting to one act, and then assuming implied consent for any and all other acts where consent cannot be obtained at the time of the act. So, sounds like a semantic argument, but there are people in the world who enjoy this activity as a kink. That is not rape. But! Major but! They exist in a state of implied consent where the initiation of intercourse while sleeping has been discussed and pre-arranged.

    In sum, the Times is bullshit, but when is that surprising?

  12. Pidgey
    December 29, 2010 at 8:24 pm

    Glad to see people mentioning waking up to sex can be a consensual act if that particular sex act is agreed upon beforehand! If a woman agrees to have sex, it doesn’t give the man the right to handcuff her, tie her up, and whip her unless that’s the sex she consented to having.

    The “once you agree to sex, the man has control over your body” thought process is pretty sickening. I wish main stream media would focus away from whether specific acts are inherently “rape” or “not rape” and focus more on whether there was consent to the acts in question

  13. Unree
    December 29, 2010 at 9:37 pm

    Once I referenced “implied consent” on Shakesville, along the lines that Pidgey and Jessica Isabel mention (while being VERY clear that the active or more awake partner can’t just assume that implied consent is present; the conditions that set up implied consent have to be clear) and the proprietress informed me that there was no such thing as implied consent. Not ever.

    Just for the non-apologist record, Julian Assange is a dangerous creep who did not have consent in either of those two Swedish encounters we know of–we know that much, even though we don’t yet know whether he fulfilled the elements of the crimes he’s charged with–and Katrin Bennhold’s friends are at best insensitive and misguided.

  14. Nicator
    December 29, 2010 at 10:43 pm

    [Content note: this comment contains content some sexual assault survivors might find uncomfortable ~ moderator]

    I completely agree with the distinction between singualr consent and implied consent. But here’s my question: suppose a couple had been dating for a while and has been very sexually active. Suppose further that, one morning, one partner were to wake up the other with oral sex with no prior discussion whatsover. Does it matter if it’s a guy going down on a girl, the girl going down on a guy, or same sex? Is it furthermore fair to draw a distinction between a relatively pleasant and harmless stimulation (e.g. tongue) vs some hardcore penetrative action that wouldn’t be easy even with a fully engaged partner and that would likely cause pain (shiny new dildo)? What about stimulating the clit with a finger? fondling? In other words, how many subjective, contextul qualities can we allow in? Now, speaking just a one random heterosexual guy, the idea of my partner surprising me with oral sex in the morning, even with no prior discussion, doesn’t bother me, provided that there are no risk factors that have been to negotiated ahead of time (e.g. STDs). I suspect but can’t prove that this is a common hetero male attitude. I wonder how that attitude compares to women’s when the situation is reversed.

  15. December 29, 2010 at 11:43 pm

    You know what actually cheapens rape? Claiming that it’s not Real Rape(TM) if you consented previously. Seriously, NOT. ON.

    Am so fucking angry right now, especially since I just expended far too many spoons trying to explain this to someone >:(

  16. December 30, 2010 at 12:23 am

    Son Gohan:
    I am so, so sorry for what happened to you. You did not deserve it, you did not bring it on yourself, it is not your fault! It will never be your fault.

  17. December 30, 2010 at 12:27 am

    Nicator, what PharaohKatt said, this is not up for discussion.

  18. December 30, 2010 at 3:41 am

    Thanks, Chally, for the trigger warning. :x

    So, yes: Putting a penis (or a finger or whatever else) into an unconscious person is rape.
    Unfortunately, refusal to accept this fact is probably why the guy who raped me still thinks of himself as being wronged by my pesky principles of consent. ><

  19. Pidgey
    December 30, 2010 at 8:08 am

    @Nicator Even a “relatively pleasent and harmless stimulation” can leave someone feeling violated. But I think I see what you are trying to ask. Hopefully we can agree that sex without a condom with an unconscious woman when she had previously agreed to sex with condoms still constitutes rape. Now most if not all of us would also agree that some virtually completely innocent act such as running your fingers through your lover’s hair as he or she sleeps next to you does not make someone a rapist. Are you asking where the line that separates “What constitutes rape” from “What doesn’t constitute rape” should be drawn?

    I have reservations about drawing such a line. Different people have different reactions to different circumstances. Drawing a set line of “what is rape” and “what isn’t rape” would make it too easy to trivialize the feelings victims have if they feel violated from something that “wasn’t quite rape enough”. Feminists have already discovered that a lot of women don’t report their rapes because of the fear that others won’t consider it a “real” rape. No matter how benign the act, or how strong the case could be made for “implied consent”, we should not trivialize the feelings of violation a victim might have. Now I recognize that the law has to be mostly black and white (there is room for interpretation by judges and juries), which makes it difficult to legislate what is and isn’t “implied consent”, but we can at least believe a victim’s feelings of being raped or assaulted are sincere even if a situation does not legally constitute rape.

    I think the question of what is and is not consent can be a complicated one, but I certainly understand why feminists are very nervous around the words “implied consent”. After all, simply being married to your attacker, going to a guy’s room, or even wearing a short skirt have be seen as “implied consent” in our rape apologist culture.

  20. Pidgey
    December 30, 2010 at 8:57 am

    Nicator also wondered if most hetero guys would like waking up to receiving oral sex from their girlfriends (as if 95% of guys liking it would invalidate the feelings of the other 5%???). A friend of a friend in college actually woke up to his girlfriend performing oral sex on him. Now I don’t know how he felt about this, because I heard this story from his friend, but his friend thought that it was kind of creepy.

    A few months ago a girl I was flirting with mentioned that she was turned on by the idea of waking me up with sex. I liked this idea, which is why I mentioned in my first post that I thought it was possible for sex with an unconscious person to be consensual. Of course if we ever got in a situation for this to occur, I would’ve laid down some rules, such as no penetrating me while I’m asleep, and certain nights would have been off limits if I needed to wake up early or felt exceptionally tired.

  21. Pidgey
    December 30, 2010 at 8:57 am

    Nicator also wondered if most hetero guys would like waking up to receiving oral sex from their girlfriends (as if 95% of guys liking it would invalidate the feelings of the other 5%???). A friend of a friend in college actually woke up to his girlfriend performing oral sex on him. Now I don’t know how he felt about this, because I heard this story from his friend, but his friend thought that it was kind of creepy.

    A few months ago a girl I was flirting with mentioned that she was turned on by the idea of waking me up with sex. I liked this idea, which is why I mentioned in my first post that I thought it was possible for sex with an unconscious person to be consensual. Of course if we ever got in a situation for this to occur, I would’ve laid down some rules, such as no penetrating me while I’m asleep, and certain nights would have been off limits if I needed to wake up early or felt exceptionally tired.

  22. corn walker
    December 30, 2010 at 9:46 am

    Blasted unclosed tags. Trying again.

    Jill, did you actually read the article? The title of this post makes me think you only read the headline, or that you’ve missed the point entirely. Surely we’re all aware that the author rarely writes the headline.

    As much as we might wish it were so, the line between “rape” and “not rape” is not clear. And by “rape” it’s certain the article is talking about the legal meaning, since the discussion is set in the context of standardizing European law (the byline is in Paris, incidentally).

    In Europe, most rape legislation still involves force as a defining element. But in 2003, the European Court of Human Rights set an important precedent for defining rape on the basis of nonconsent: The court found against the Bulgarian authorities who had dropped a rape case involving a young woman and two perpetrators because there was insufficient proof of physical force.

    The Assange case is just the jumping off point, the reason for the discussion, the hook. The purpose of the article is to examine the difficulties in updating our laws to recognize nonconsent rather than force as the standard for determining whether a particular act is called rape. And once those laws are updated, it also points out the difficulties in enforcing them.

    “Prosecutors often have difficulties proving nonconsent if there isn’t evidence of some form of violence,” said Ms. Burman, the Swedish rape expert.

    One of the things that makes this issue so stubborn is that the current standard for sexual interaction is not enthusiastic consent. Instead the decades of gender role expectations handed down to us suggest the man must be the aggressor and the woman passive. Sure, everyone knows “no means no” but sadly our culture still presumes the absence of “no” means “yes.”

    One reason this issue is so tricky is that it goes to the heart of how we define heterosexuality.

    “There are still legacies of this idea that the male is the active pursuer and the female is the one who sets the limits,” said Ms. Kelly of London Metropolitan University.

    In this world, as long as the woman is passive, she is consenting.

    It is this attitude that I think needs updating, and the article agrees. In fact, I’m having a hard time finding anything advocated in the article (other than anecdotes from the author’s circle of friends) that is contrary to most feminists’ position on sexual assault.

  23. PrettyAmiable
    December 30, 2010 at 9:47 am

    Unree: Once I referenced “implied consent” on Shakesville, along the lines that Pidgey and Jessica Isabel mention (while being VERY clear that the active or more awake partner can’t just assume that implied consent is present; the conditions that set up implied consent have to be clear) and the proprietress informed me that there was no such thing as implied consent. Not ever.

    For some people, there is no such thing. The safest way for everyone to act to protect each other and themselves is to assume this is true. Use of “implied consent” can and consistently is distorted to make the victim the problem.

  24. Dana R
    December 30, 2010 at 1:05 pm

    Son Gohan, I am so sorry. Nothing, *nothing* you could ever do would make this “your fault”. It is THEIR fault for what they did to you.

    You are obviously still affected by this; this is not because you are weak, it is because you are human. There are resources aimed at straight men who have been raped, and I think it would be worth contacting your nearest rape crisis centre as they should have contacts for you.

  25. Paraxeni
    December 30, 2010 at 1:35 pm

    @son gohan – it was not your fault. It was the fault of everyone who participated, of everyone who went along with it, but not you.

    Drinking isn’t a crime. Being shitfaced, black-out drunk at a party isn’t a crime, but raping someone is. You are not, were not, ever to blame.

    I hope one day you can find peace.

  26. wembley
    December 30, 2010 at 4:29 pm

    Son Gohan, I’m so, so sorry about what happened to you. It wasn’t your fault at all, whatsoever. You didn’t deserve it. Thanks for sharing your story. It really underlines what we’re talking about here: AN UNCONSCIOUS PERSON CANNOT CONSENT. What the fucking fuck is wrong with the media?

  27. wembley
    December 30, 2010 at 4:33 pm

    Re: Nicator’s comment: I love how, in threads about rape, one dude always comes in to be like, “Okay. So. What if I’m, like, fighting Wolverine, right? And his Adamantium claws RIP ALL MY CLOTHES OFF. And then Colossus (who’s totally on my team, btw) picks me up and Fastball Specials me right through some chick’s window and she’s asleep and I LAND ON HER WITH MY DICK IN HER VAGINA. IS THAT RAPE????????”

    Seriously, every blog post ever, some guy has to be like, “But, but, but what about this, is THIS rape?” Guys, if it’s so hard to figure out the concept of enthusiastic consent, maybe you should stick to masturbating for a while. It won’t kill ya.

  28. December 30, 2010 at 4:51 pm

    Nicator– I think the easiest way to explain it is this.

    You’d love to be woken up with sex. Therefore, you consent to it, and being woken up with a blowjob for you, even if you hadn’t discussed it before, is not rape.

    Xander across the street, however, hates being woken up with a blowjob. Maybe it causes him to flashback to when he was molested in his sleep as a child. But it doesn’t have to be that drastic; his feelings are equally valid if the reason he doesn’t like it is because he’s grumpy in the morning before his coffee. Whatever the reason, being woken up with a blowjob for Xander is non-consensual and therefore rape.

    The question is: if you are looking to give a blowjob to your sleeping boyfriend, how do you know if he’s a Nicator or a Xander? Well, you ask. If you don’t ask, you are taking the risk that you are going to rape him, and I for one refuse to take that risk.

  29. wembley
    December 30, 2010 at 5:25 pm

    Ozymandias’ reply is better than mine — sorry for being needlessly snarky/mean.

  30. Kelsey
    December 30, 2010 at 5:37 pm

    No way, wembley, I thought you were spot-on (and funny).

  31. Pockysmama
    December 30, 2010 at 6:55 pm

    Wembley, your comment was aweswome and if you don’t mind, I’d love to use it. I’m still giggling and its been 15 minutes.

  32. December 30, 2010 at 7:45 pm

    Nah, Wembley, yours is awesome and has a X-men reference in it. Mine only has a Buffy reference, and so is clearly inferior in the ways of nerddom.

  33. PrettyAmiable
    December 30, 2010 at 8:05 pm

    Disappointed I didn’t get that you meant Xander from Buffy.


  34. matlun
    December 31, 2010 at 8:03 am

    @Son Gohan: As many have already pointed out: That was clearly and indisputably rape. Good luck and I hope you can grow past this (so easy to say, so hard to do).

    @ozymandias3: Really? You believe that consent can be given after the fact? With this interpretation is it not rape if the sleeper did not protest after waking up? This sounds very strange to me, but I am perhaps misrepresenting you (?)
    (As an example of why I find this bad: With this weird interpretation, wouldn’t this mean that the Assange case is not rape since she did not immediately protest?)

    As to Nicator’s original question, I think it is a fair one. If you are with someone you know well you should be fairly aware of their probable reactions, and if you reasonably think that this is something they will appreciate, I do not really see the problem. I do not like the idea of actual penetration while still asleep, but waking up to some level of fondling/foreplay works for me.

    It is obviously also clear that having sex with a sleeping person can be rape, and I have no position on the specifics of the Assange case and the NYT article.

    (IANAL, so the above is of course only marginally related to the legal definition of rape which varies depending on jurisdiction anyway…)

  35. matlun
    December 31, 2010 at 8:11 am

    @ozymandias3: Rereading your post, I see now that I did probably misunderstand you. You were not talking about consent after the fact, but rather on “theoretical consent”. That is, if the consent would have been given (if asked for), then it was not rape.

    An interesting position, but I think it still misses some nuance. As an example consider the case where I would have given consent beforehand, but because this happened without any previous discussion I feel violated and do not consider myself consenting. I would consider this rape.

    If I have misunderstood you again, I apologize, and I will let you clarify before making a fool of myself again ;)

  36. revolutionrose
    December 31, 2010 at 10:22 am

    I could frame it like this. Grandma gives money to her church at least twice a week, she is very religious, very involved in her church. She loves her church, the people at her church, she loves to give to her church and is agreeable every time that collection basket comes around. Well 1 night Grandma is sleeping and the pastor of her church comes into her house without asking, doesn’t wake her up, & steals her wallet. The next morning she awakes & realizes what happened. Was that a crime? Every person in the world would go “of course!” but for some reason replace money with sex and it’s “well, no, well maybe, well I dunno . . .” Grandma gave them money but it doesn’t mean her money is always theirs. I give my husband sex, it doesn’t mean my body is always his. My husband was in the mood in the middle of the night a couple of days ago so he woke me up & suggested a way to pass the time, I said sure, & we had sex. Guess what, that’s not weird, that’s called not being a rapist. I have had sex with my husband probably a thousand times during our relationship & he still would never even consider that 1001 was the time he could do it without my permission. How is this so confusing???

  37. December 31, 2010 at 2:22 pm

    matlun– You make an excellent point! If “I would have consented, except we didn’t discuss this ahead of time and so now I feel violated”, then clearly you are /not/ consenting, and it is rape.

    I was simply trying to illustrate to Nicator, who seemed to be slightly confused about why if he liked being woken up with sex it would count as rape if they didn’t talk about it first, that it is not that simple. If you fuck a sleeping person, they may be consenting– but there is a large chance that they are /not/ consenting, and it is unethical to take that risk, so it is a good idea to talk about it first. I think it is a bit much to call it an entire position, as opposed to a debunking of a single argument.

  38. Unree
    December 31, 2010 at 5:57 pm

    @PrettyAmiable — You are right that implied consent to sex is a notion that is being misused by rape apologists most of the time it is invoked.

  39. December 31, 2010 at 10:30 pm

    Thank you for this post, Jill. It blows my mind that this issue is really up for debate.

  40. January 2, 2011 at 11:41 pm

    Something that seems to be going missing in these comments (though Lindsay makes it clear in her article and Jill implies it with her dildo in the ass analogy,) is that the woman never consented to unprotected sex.

    Even if she was half awake, and somewhat aware that she was being penetrated, even if she had no objection to being penetrated by a condomed penis, as soon as he uses her sleepy state to penetrate her with something else, he’s guilty of rape.

  41. Cha-Cha
    January 3, 2011 at 11:34 am

    This article is so well written. Thanks.

    I forget who said it in comments, but I think the idea that rape has to be some kind of “dramatic” assault is really common and problematic. The other night I was at a New Year’s party, and another woman told me that her sister “might have been assaulted”… but on the other hand, she was “drunk and probably leading those guys on and it probably wasn’t that bad.” And this was a comment about her own sister. I was sort of stunned speachless, until my partner was like, “um… if you have manipulate a girl into sex with you, then you are a sh*tbag rapist. Period.” And then it was like we had somehow brought the party down. Just, wow.

    It’s amazing how often I hear these comments from other women. Where I live, there’s kind of this “don’t be a whiner” attitude about everything… including rape, and a real tendancy to diminish sexual assault. I guess I’m always surprised when it comes from other women… it feels like we’re in competition with each other or something, and this is another way we can bring each other down, by siding with dudes and being all like “oh she asked for it.” It really sucks. And it’s hard for me to confront… especially because it keeps happening in straight / het spaces, where I don’t feel very comfortable anyway.

  42. January 3, 2011 at 3:46 pm

    Cha-Cha: there’s kind of this “don’t be a whiner” attitude about everything… including rape, and a real tendancy to diminish sexual assault.

    Ugh. yeah. This. I’m reminded of a relatively minor but still aggravating incident at a local RCL where an older guy came up to greet me. I thought he was coming in for a kiss on the cheek but ended up shoving his tongue in my mouth. Not. Fucking. Cool. I was dumbfounded but thankfully my sister was there and had the balls I lacked to call the guy out and demand an apology from him. I was just pissed speechless.

    Later my mom told me I might have ‘taken it too personally’ and that guys like him are ‘from a different generation and don’t really know better’. Basically I should have laughed it off. To that I say Bullshit. Now he’ll know better. And this from my mom, who is usually pretty enlightened. It’s frustrating. and it’s sad because (although I try to avoid it now) I know I was guilty of this kind of thing when I was younger.

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