links for 9-6-2011

In Canada,the Supreme Court ruled against the idea that an unconscious woman can give “advanced consent”. However, it was not a unanimous decision, as three of the judges thought this:

The three dissenting justices argued that it would further women’s right to autonomy to create a new doctrine of “advance consent,” so that unconscious women can have “sexual adventures.”

Thanks guys! Glad to know someone out there cares about my right to have “UNCONSCIOUS SEXUAL ADVENTURES”. BECAUSE I WOULD BE SO AWAKE AND COGNIZANT AND THEREFORE HAVE FULL CONSENSUAL PARTICIPATION IN AND ENJOYMENT OF SAID “ADVENTURES”. Who are these people and how do they become judges?

Three Food Not Bombs Activists were arrested in Orlando for feeding the homeless because…? Seriously, if you can tell me why this is should be an illegal activity, I’ll… probably call you a fascist.

TRIGGER WARNING for transphobia:

Andrej Pejic, androgynous Aussie model, makes FHM‘s 100 sexiest women list. FHM has since apologized. Pejic was also the subject of another incident of heteronormative panic when Barnes and Noble censored his Dossier cover under the assumption that it was obscene. (I’m using a male pronoun here because as far as I’ve seen in interviews Pejic identifies that way, but please let me know if I’m wrong). Pretty sure I’ve seen the same amount of skin on every shot of a woman’s body on Cosmo, Maxim and GQ, and no one’s censoring those.

Via Colorlines:

A new report has been released detailing the experiences of trans inmates. It’s pretty comprehensive and devastating.

Have y’all seen Rhianna’s new video? Personally, I love it, and think it’s a complicated, painful, nuanced and intense discourse on rape culture. Here are some great articles that say why better than I can.

For your dose of awesome today: This Australian senator calls out sexism like a total badass.

Author: has written 16 posts for this blog.

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88 Responses

  1. PrettyAmiable
    PrettyAmiable June 9, 2011 at 7:04 pm |

    Hey, just a quick note – the articles on Rhianna are missing a : after the http!

    The colorlines article was a great read. I haven’t had a chance to read the other one yet.

  2. PrettyAmiable
    PrettyAmiable June 9, 2011 at 7:06 pm |

    Rihanna? ahhft. Do you ever look at a word for so long and it just stops parsing as a word?

  3. alynn
    alynn June 9, 2011 at 7:17 pm |

    Wtf is this “advanced consent” BS? Like really, that was even an issue? I’m on the verge of my head blowing up, but I’m going to try to tough it out and say this: Someone honestly tried to protect the “right” to give women sexual adventures while unconscious? So. Much. Wrong. With. This.

    One of the most important aspects of consent is that it can be revoked any time one of the parties is uncomfortable or just not into it anymore. YOU CAN’T DO THAT IF YOU’RE UNCONSCIOUS. This stupid “advanced consent” notion rests upon the premise that consent once is consent always. How fucked up is that?

    And did I really just have to spell that out?

  4. mayhex
    mayhex June 9, 2011 at 7:23 pm |

    Morning Anoushka,

    Andrej Pejic is big news here in Australia, the media are always very proud when one of our country kids make it big in overseas. He’s male and identifies as such, but models both men’s and women’s clothing because of his androgynous looks. He also looks good in a bride’s dress!

  5. alynn
    alynn June 9, 2011 at 7:23 pm |

    To specify, I agree w/ you Anoushka, and I’m spelling it out to the 3 judges…Sorry, if my rage looked like it was directed all over :)

  6. David
    David June 9, 2011 at 8:32 pm |

    Arrested for “illegally” feeding the homeless? What’s next, illegal storytime at the nursing home?

  7. ~s~
    ~s~ June 9, 2011 at 8:42 pm |

    Yes there are fucktards who are pro- “unconscious sexual adventures” but at least they didn’t win!

    Also seems like it was probably poorly translated from French where it doesn’t sound quite so creepy since “aventure sexuelle” basically just means fun sexy times, or an affair… although, again, really hard to do if you’re unconscious? I’m sure some of them felt that they were standing up for the rights of people who practice extreme erotic asphyxiation. …or not.

  8. Bitter Scribe
    Bitter Scribe June 9, 2011 at 9:31 pm |

    With that Florida feeding-the-homeless thing, I’d like to think a jury won’t convict, but you never know. There’s a surprising amount of resentment against the homeless out there.

    Even my own sister, one of the most compassionate people I know (and an invalid who has lived with several decades of excruciating pain), when I told her about the homeless people I saw at the library, responded, “You mean they can’t keep them out?”

  9. bhuesca
    bhuesca June 9, 2011 at 10:21 pm |

    I read a sex advice column many, many years ago where a woman had a fantasy or fetish for her husband to perform x, y, and z sexual acts on her while she was unconscious/sleeping…and she kept waking up when her husband initiated her requests during the night and was frustrated, and the columnist suggested valium…and then was attacked for supposedly promoting rape when it was this woman’s consenting & suggested fantasy with her consenting & willing husband that he perform x,y,&z sexual acts on her in her purposefully self-induced state. Is this at all what they’re thinking? Or am I wrong? (Sorry no links, this was seriously published eons ago)

  10. Lance
    Lance June 9, 2011 at 10:32 pm |

    While language about “unconscious sexual adventures” is pretty absurd, I don’t think the idea of advanced consent is quite as absurd.

    I have had two different sexual partners who specifically requested that I start having sex with them in the morning when they were still asleep, as it was a fantasy of theirs to be woken up by the sexual activity. (One basically just wanted to be woken up to oral play, while the other actually wanted it to go as far as penetration.) There was not just consent, but specific requests in both of those cases.

    Of course, I knew that it was very tricky territory, and that my partner’s attitude in the morning might be different than it was the night before. The situations basically required about the same amount of forethought, trust, and sensitivity as an advanced bdsm scene.

    So basically, I do think there are situations where an adult can give advanced consent. I don’t know that there needs to be legal protection for advanced consent, though, because if one of these situations actually got to the level where the participants were in court, then something has gone seriously wrong.

  11. Esti
    Esti June 9, 2011 at 10:41 pm |

    Okay, so I agree with the majority’s decision (which found that advanced consent could not be given primarily because it meant that an individual would not have a chance to change their mind and revoke consent during the act). But I’ve found it really frustrating to read progressive blogs’ commentary on it, because there’s a tendency to go “you can’t consent when unconscious! These people are awful!” and not actually engage with what the dissent actually said. One thing to keep in mind, for example, is that this was a case about interpreting a statute, not about what the judges thought would be the ideal consent law in the abstract.

    And the question itself is a little more difficult than some of the descriptions make it seem. This was a case involving auto-erotic asphyxiation; the question was whether it was assault if an individual says to their partner “while I am unconscious, please do x to me” and the partner does just that. That’s maybe not a common situation, but consider this one: this ruling means that anyone who wakes their partner up with a blow job after *specifically being asked to do so the night before* has committed sexual assault (and if their partner ever wanted to report them for it, they could be prosecuted). And as both the majority and the dissent actually discussed, even kissing your sleeping partner is now assault.

    I, like the majority, think that it was a good idea to trade slightly less sexual freedom for a slightly greater ability to prosecute sexual assault. But I don’t think this is a situation where anyone who has the opposite view is a terrible, rape-loving jerk. It’s easy to strawman the other side, but recognizing that a trade off is being made — and that it’s *worth making* that trade off because of the seriousness of sexual assault and our terrible track record at prosecuting it — is probably more productive.

    (Sorry if that was a little more aggressive than the little blurb above warranted. As I said, my frustration in relation to this particular story has kind of been mounting over the past few weeks of commentary.)

  12. andrea
    andrea June 9, 2011 at 10:52 pm |

    I’ve never understood the auto-asphyxiation thing, but meh.. that’s just me.

    However, along with explicit consent (even before being ‘put out’) one should probably seek “Specific consent” before engaging in any activity with someone who is not going to be conscious during said activity.

    If I consented to having sex while in a less-than-conscious state, but woke up being sodomized with a dildo I’d be pissed.. I didn’t sign on for THAT.

  13. vistana
    vistana June 9, 2011 at 10:54 pm |

    I can understand why our Supreme Court made the ruling it did, and the way that ‘sexual adventures’ thing is phrased is definitely creepy, but now according to the laws of my country I can no longer legally wake my boyfriend up with a blowjob, which he has told me many times he really loves and wants to have happen. Me, I’m a grump in the morning so wakeup sex really isn’t my thing, but I know a lot of people who like being woken up that way by consenting partners.
    I have a problem with any law that tells me what I can or can’t consent to when it comes to my own life, sex or otherwise.

  14. Esti
    Esti June 9, 2011 at 11:05 pm |

    Andrea, that was definitely already illegal in Canada. Our consent laws are actually fairly good (at least in theory — we have a lot of the same problems with investigating and prosecuting sexual assault that the U.S. does), and we use an affirmative consent standard, for example.

  15. ozymandias
    ozymandias June 9, 2011 at 11:37 pm |

    I often enjoy being woken up with sexual play. However, since I enjoy it and give explicit consent to it, I am hardly likely to drag my boyfriend into court over it for shits and giggles. Most cases that get to court, it can be assumed, as not people claiming consensual sex was rape for the hell of it; therefore, while technically illegal, consensual advance consent (how’s that for a phrasing?) is unlikely to be prosecuted.

  16. Jadey
    Jadey June 10, 2011 at 12:05 am |

    Canada has a history of making strict laws but not going out of our way to enforce them, like our copyright laws, which are on the books way more restrictive than the US’s (our “fair dealing” is nowhere near as flexible as the “fair use” thing in the US), but which we don’t pursue with near as much fervour (though that may change). There’s also legislation that criminalizes polyamory, which is hella unnerving but is also not really used that I know of. On one hand, I appreciate the stand against the weaselly kinds of defenses (sorry, or was that a marten?) that people will concoct to blame victims and shirk culpability, but what irks me about legislation is that it’s just not contextual enough and just because something isn’t enforced in a fucked up way right now doesn’t protect us from that in the future. I’m not opposed to this ruling, but the article hits on it – our legal definitions are too simplistic to encompass the full complexity of consent. Barring vast improvement in our societal and legal discourse on sex and consent though, I’m okay with erring on the side of “don’t assume an unconscious person is still or has ever consented to having sex with you”.

  17. evie
    evie June 10, 2011 at 3:03 am |

    While the censorship and disgust directed at trans bodies, and especially trans feminine bodies (here including even those that aren’t trans but might look it) has connections to heterosexism, it’s more obviously and directly about cissexism. So maybe ‘cisexist panic’?

  18. Lara Emily Foley
    Lara Emily Foley June 10, 2011 at 3:06 am |

    vistana:
    I can understand why our Supreme Court made the ruling it did, and the way that ‘sexual adventures’ thing is phrased is definitely creepy, but now according to the laws of my country I can no longer legally wake my boyfriend up with a blowjob, which he has told me many times he really loves and wants to have happen.Me, I’m a grump in the morning so wakeup sex really isn’t my thing, but I know a lot of people who like being woken up that way by consenting partners.
    I have a problem with any law that tells me what I can or can’t consent to when it comes to my own life, sex or otherwise.

    No one is going to arrest you for doing that., for god’s sakes, your BF isn’t likely going to report you to the police. This ruling protects survivors and does nothing to consensual sexual relations.

  19. Lara Emily Foley
    Lara Emily Foley June 10, 2011 at 3:08 am |

    Does nothing to honest consensual relations

  20. MadGastronomer
    MadGastronomer June 10, 2011 at 5:28 am |

    @Lara Emily Foley: Yeah, because laws — particularly laws about sex — have never been enforced unevenly, especially against minorities. Sodomy laws (which in the US usually described behaviors, not participants) were never enforced solely against gay people while ignoring straight people who broke those laws, or anything.

  21. Yonmei
    Yonmei June 10, 2011 at 5:52 am |

    Re the Orlando arrests – this has been going on for quite a while. Slacktivist did a blog about it in 2007: Broken laws.

  22. PrettyAmiable
    PrettyAmiable June 10, 2011 at 6:53 am |

    WTF? You can assault men, too. And I strongly doubt that there’s an epidemic of men going and making police reports about wanted morning blowjobs for shits and giggles. FFS, this attitude that people are applying about getting reported for waking men up with sex? How ridiculous are you to not understand that this is the shit women go through all the time when they’re woken up with unwanted sex (i.e. rape) and then, gasp, have the audacity to report it?

    If you’re concerned that you could be sent to jail because last night’s wanted morning beej is this morning’s assault, frankly, you shouldn’t be doing it anyway on ethical grounds regardless of whether or not there’s jail involved.

  23. preying mantis
    preying mantis June 10, 2011 at 7:36 am |

    Lance:
    So basically, I do think there are situations where an adult can give advanced consent. I don’t know that there needs to be legal protection for advanced consent, though, because if one of these situations actually got to the level where the participants were in court, then something has gone seriously wrong.

    Yeah, that’s pretty much my take on it. There’s a lot of stuff that maybe we don’t necessarily want to ban (specifically-requested wake-up oral, for instance). But until Big Brother actually gets infrared cameras in everybody’s bedrooms, we don’t really have to worry about anyone lodging criminal complaints over sex acts to which they fully consented for funsies. We do really have to worry about rapists rendering victims unconscious, raping them, and then claiming that they had given advanced consent for everything because juries apparently have a thing for believing that people lodge criminal complaints about fully consensual sex acts for funsies.

  24. bhuesca
    bhuesca June 10, 2011 at 8:05 am |

    Hi! Am I stuck in moderation? (My submission was about a woman requesting the sex act(s) in question, and there’ve been several posts now about the consequences of men requesting the sex act(s) (ie wakeup oral) in question, so I don’t think I derailed…but sorry if I did!

  25. Noctiluca
    Noctiluca June 10, 2011 at 8:18 am |

    Pejic was also the subject of another incident of heteronormative panic when Barnes and Noble censored his Dossier cover under the assumption that it was obscene.

    Pretty sure I’ve seen the same amount of skin on every shot of a woman’s body on Cosmo, Maxim and GQ, and no one’s censoring those.

    That’s a lie. The women on any of those magazine covers never show the same amount of skin he did, namely, women are never allowed to show nipples, as he did. The magazine cover censorship was a case of ‘female body phobia’ rather, where that one bit of skin of female/feminine bodies gets universally censored and defaced; not a case of transphobia or ‘heteronormative panic’, as you claim.

  26. ~s~
    ~s~ June 10, 2011 at 8:35 am |

    The incident at the core of the Supreme Court case might shed a little light on the decision. The woman claimed that she had consented to be vaginally penetrated while she was unconscious, but that her partner anally penetrated her instead. This would be a fairly cut-and-dry case of rape. However, later one of her friends testified that she’d originally said she had, in fact, agreed in advance to be anally penetrated while unconscious, and had only taken up charges against her partner after they had a fight.

    So I think that the final decision is coloured by the tension between this woman’s desire to have some kind of sexual contact while unconscious, and the fear that unwanted sexual contact could occur while she was helpless and vulnerable.

  27. Brian
    Brian June 10, 2011 at 10:42 am |

    It’s not uncommon, historically, for consensual but illegal sex to be prosecuted when the crown learns about it without any complaint by the victim (Gay sex, possibly others I’m not aware of?). To think that you’d be safe just because your consenting partner is unlikely to file a complaint is quite naive.

  28. alynn
    alynn June 10, 2011 at 10:43 am |

    I agree w/ what everyone here is saying about how it’s fine to like to be woken up w/ sex and that this can be a non-rape situation…or course! The specific problem is trying to make it a legal protection. No one’s going to take their partner they TOLD to do that to court…they’re going to take the asshole who actually raped them, and giving a rapist an easy out with the “advanced consent” clause is NOT COOL.

  29. Jim
    Jim June 10, 2011 at 11:23 am |

    David: Arrested for “illegally” feeding the homeless? What’s next, illegal storytime at the nursing home?

    This case looks pretty absurd. But we had one in our neighborhood park where every Sunday afternoon this guy – the Reverend Love or some such scam- took over the park to feed the homeless and whoever else with his very smoky mobile barbecue thing. So he was appropriating a public space for his own private use, religious according to his spin, as well it turned out, as for his own private business. He was selling meth to his guests. So there can be cases where it neeeds to be controlled.

    But 40 people? Where it’s already permissable to feed 25? Why not just give these people a permit?

  30. Justine Baily
    Justine Baily June 10, 2011 at 12:58 pm |

    I don’t know how to feel about this, to be honest. On the one hand, it’s great that something with such obvious rape apology / enabling potential get shot down. On the other hand, it’s a judicial ruling that tells me what types of sex I can and can’t consent to. Yes, my boyfriend isn’t going to run to the police if I wake him up with oral, as he’s already told me he really likes that. And I’m not going to run to the police if he wakes me up with sex, as I that’s something I really, really like and have told him such. If either of us change our minds and want it to stop, it stops, but that goes without saying (or should). But I don’t like a judge made law that says that us not reporting each other is the only thing that divides “mutual fantasy” from “sexual assault.”

    Or to put it more flatly, yes, I CAN and DO sometimes give advanced consent, and it pisses be off to hear someone saying I can’t do that anymore because rapists use the idea as an excuse for the inexcusable.

  31. vistana
    vistana June 10, 2011 at 3:30 pm |

    Lara Emily Foley: No one is going to arrest you for doing that., for god’s sakes, your BF isn’t likely going to report you to the police. This ruling protects survivors and does nothing to consensual sexual relations.

    If it has nothing to do with consensual sexual relations it shouldn’t tell me what types of sexual relations I can legally consent to.

  32. Josh
    Josh June 10, 2011 at 3:51 pm |

    I am surprised to see so many people here assuming that no one who’d consented to wake-up sex (or whatever) would ever turn on their partner under any circumstances. Haven’t you all ever witnessed a really, truly, ugly breakup or divorce?

  33. Dank
    Dank June 10, 2011 at 6:30 pm |

    A possible explanation for bans on feeding the homeless:

    Florida has incredibly strict sex offender laws. Many people become homeless because of them, and so many of Florida’s homeless are sex offenders.

    Because of this, towns want to keep homeless people away from their parks and public places. So they make ordinances that ban feeding the homeless in those places.

    I’m not saying I agree with any of this, but it’s not as simple as evil people hating charity.

  34. preying mantis
    preying mantis June 10, 2011 at 6:44 pm |

    Dank, you’re overthinking it a little. A lot of Florida cities and towns just straight up hate the homeless. They don’t care if they’re sex offenders or addicts or dealers or mentally ill or just down on their luck–they “lower property values” and “contribute to petty crime epidemics” and “drive business away” and whatever else textbook excuse seems to work.

  35. PrettyAmiable
    PrettyAmiable June 10, 2011 at 6:44 pm |

    Josh:
    I am surprised to see so many people here assuming that no one who’d consented to wake-up sex (or whatever) would ever turn on their partner under any circumstances. Haven’t you all ever witnessed a really, truly, ugly breakup or divorce?

    Why wouldn’t they already claim marital rape if they’re willing to lie about their consent?

  36. Dank
    Dank June 10, 2011 at 6:54 pm |

    PrettyAmiable: Why wouldn’t they already claim marital rape if they’re willing to lie about their consent?

    They wouldn’t be lying if the law says that there cannot be advance consent.

    Another article about Florida and homlessness.

  37. Pidgey
    Pidgey June 10, 2011 at 7:59 pm |

    Anoushka, you imply that someone couldn’t possibly enjoy unconscious sex. Obviously one cannot enjoy it while unconscious, but, like other BDSM scenes, afterwards one could look back and get incredibly turned on thinking about the taboo nature of the ordeal.

    But just because some people can find it enjoyable does not mean it should be legal. The inability to withdraw consent during the act can be considered an insurmountable obstacle to performing the sex act in a moral manner. Also, this specific case dealt with issues of strangulation and breath play, seen as very dangerous activities even by much of the BDSM community.

    I am concerned about what effect this ruling will have on “wake-up sex” though. I am skeptical of the argument “if you do it right then you have nothing to worry about.” Using that logic I wouldn’t have to worry about sodomy laws, because my partner wouldn’t turn me in and the police won’t enforce it. Unless I were a gay man in a homophobic society and my partner, feeling guilty and still closeted even to himself, turned me in and said I seduced him…

  38. Tori
    Tori June 10, 2011 at 8:00 pm |

    Josh:
    I am surprised to see so many people here assuming that no one who’d consented to wake-up sex (or whatever) would ever turn on their partner under any circumstances. Haven’t you all ever witnessed a really, truly, ugly breakup or divorce?

    Not as often as I’ve witnessed rape.

  39. PrettyAmiable
    PrettyAmiable June 10, 2011 at 8:10 pm |

    I completely disagree. That’s ridiculous. I am not telling a single person on this board who likes getting woken up with sex that they have been raped. It is up to the individual to decide whether or not their experience is rape. Therefore, if someone was decidedly NOT raped because they enjoy getting woken up with sex and they report it later as such for some ridiculous revenge fantasy we’re all making up because apparently we’re all falling into some victim-blaming trap that says victims are running around making tons of false-rape accusations for revenge, then they are lying. If they’re willing to lie here, there’s no reason we wouldn’t think they’d lie about marital rape.

    What is this I don’t even

    FFS, do you realize how much fucking worse it would be if they found in the opposite way? I said, as someone who was sexually assaulted in my own bed after I passed out drunk. Seriously, if you guys are so fucking worried that your morning blowjob is going to land you in prison, don’t fucking do it or stop dating/fucking assholes instead of complaining that sexual assault victims finally got a fucking ruling in our favor. My sympathy for you is utterly negligible, which, frankly, I think is warranted since suddenly this is a feminist site filled with people concerned about potential, fictional falsely?-accused rapists instead of assault victims. Did I say WTF yet? Because WHAT THE FUCK.

  40. Jadey
    Jadey June 10, 2011 at 10:27 pm |

    Dank: I’m not saying I agree with any of this, but it’s not as simple as evil people hating charity.

    I think the idea that reactions to sex offenders is playing a role in this is interesting and viable, but there’s also plenty of flat-out hatred of homeless people that’s been documented all over the place. There’s even some neuropsychological research showing that some people have have a similar mental reaction to homeless people as with filth and garbage moreso than with indicators of humanity (PDF file of some of that research available here, for interest’s sake), so while I’m sure there are multiple factors going on, flat-out hatred and dehumanization of homeless people is part of it. I think people would also be quick to assume that people from one “undesirable” class are also likely to be members of another “undesirable” class as well, though.

  41. Li
    Li June 10, 2011 at 11:00 pm |

    I’m seconding PrettyAmiable on this one. If you are worried that your sexual activities are going to end up with you being charged with rape, SOMETHING IS SERIOUSLY WRONG AND YOU SHOULD PROBABLY STOP WITH THOSE PARTICULAR ACTIVITIES UNTIL YOU ARE NO LONGER WORRIED ABOUT THAT. Like, if in the back of your head when you have sex with someone is how they are going to turn around and make a “fake” rape report about you, then like, don’t fuck them? Because among other things, this will mean that us survivors don’t need to worry about the chance that our lovers secretly think we’re lying liars who are just waiting to ruin their lives.

  42. michael
    michael June 11, 2011 at 3:30 am |

    Josh:
    I am surprised to see so many people here assuming that no one who’d consented to wake-up sex (or whatever) would ever turn on their partner under any circumstances. Haven’t you all ever witnessed a really, truly, ugly breakup or divorce?

    I agree with Josh in that it is now definitely easier for an ex-girlfriend to get you in jail by claiming that you raped her via lack of advanced consent when in fact you didn’t but i guess this isn’t a major problem in society, at least not as much as rape. In fact, it is automatically rape, even if it isn’t literally rape. This is like when an 18 year old has sex with a 17 year old in some regions and it is statutory rape even though it literally wasn’t rape.

    This reminds me of a pornography documentary in which this actress talks about how a dildo was shoved in her rectum and she was debating on whether or not it was rape because she agreed to perform certain acts but there was not enough specificity in what she agreed to do or what was asked her of to concretely determine if the male actor had permission to do it to her or not.

  43. bhuesca
    bhuesca June 11, 2011 at 9:21 am |

    @38 and 40:

    SERIOUSLY?!?!? If people are worried their “illegal under current law” sexual activities may land then in jail, they should just stop and STFU? So, for example, gay men who live in areas of the world that ban sodomy and define sodomy as anal and oral sex should just stop and STFU because their activities may land them in jail? Seriously?

  44. Aaron W.
    Aaron W. June 11, 2011 at 10:40 am |

    bhuesca: SERIOUSLY?!?!? If people are worried their “illegal under current law” sexual activities may land then in jail, they should just stop and STFU? So, for example, gay men who live in areas of the world that ban sodomy and define sodomy as anal and oral sex should just stop and STFU because their activities may land them in jail? Seriously?

    Thank you! This! So much.

    Some of the people up –thread should also remember that your partner need not be the one to report you for you to face legal charges. So, yeah, your partner may not complain because the act was, you know, actually consensual, but if it is illegal you can still go to jail for it. Even, by the way, if your partner asks them not to (criminal law is enforced by the state not the victim and it is often enforced against the victim’s express wishes). And if your partner wants to testify that the act was consensual they probably won’t be allowed to (since, now by definition it wasn’t, your partner can’t testify that they gave “advanced consent” because there is now, legally speaking, no such thing). And if you want to tell the jury it was consensual you won’t be allowed to either – for the same reasons.

    Yeah, the ruling makes it easier to put actual rapists in jail, but it also puts innocent people who engage in unconventional and totally consensual sex at risk of jail too.

  45. Lara Emily Foley
    Lara Emily Foley June 11, 2011 at 2:21 pm |

    Aaron W.: Thank you!This! So much.

    Some of the people up –thread should also remember that your partner need not be the one to report you for you to face legal charges.So, yeah, your partner may not complain because the act was, you know, actually consensual, but if it is illegal you can still go to jail for it.Even, by the way, if your partner asks them not to (criminal law is enforced by the state not the victim and it is often enforced against the victim’s express wishes).And if your partner wants to testify that the act was consensual they probably won’t be allowed to (since, now by definition it wasn’t, your partner can’t testify that they gave “advanced consent” because there is now, legally speaking, no such thing). And if you want to tell the jury it was consensual you won’t be allowed to either – for the same reasons.

    Yeah, the ruling makes it easier to put actual rapists in jail, but it also puts innocent people who engage in unconventional and totally consensual sex at risk of jail too.

    Can you please understand the difference between sex between two conscious people and sex between one conscious person and one unconscious person, can we please please please see the difference? Is it that difficult?

    bhuesca:
    @38 and 40:

    SERIOUSLY?!?!? If people are worried their “illegal under current law” sexual activities may land then in jail, they should just stop and STFU? So, for example, gay men who live in areas of the world that ban sodomy and define sodomy as anal and oral sex should just stop and STFU because their activities may land them in jail? Seriously?

    bhuesca:
    @38 and 40:

    SERIOUSLY?!?!? If people are worried their “illegal under current law” sexual activities may land then in jail, they should just stop and STFU? So, for example, gay men who live in areas of the world that ban sodomy and define sodomy as anal and oral sex should just stop and STFU because their activities may land them in jail? Seriously?

  46. Lara Emily Foley
    Lara Emily Foley June 11, 2011 at 2:24 pm |

    Woah major quoting fail :| Meant to quote $41 and only #41

  47. PrettyAmiable
    PrettyAmiable June 11, 2011 at 3:15 pm |

    Lara Emily Foley: Can you please understand the difference between sex between two conscious people and sex between one conscious person and one unconscious person, can we please please please see the difference? Is it that difficult?

    THIS. I cannot imagine a more disingenuous comparison.

  48. PrettyAmiable
    PrettyAmiable June 11, 2011 at 3:21 pm |

    Although, disingenuous outrage of the day probably stems from some ridiculous reading of what I wrote that says I think every law is just and you should always abide by them so you don’t land in jail. That’s definitely NOT what I said. But to be clear – this law? Yeah, I think it’s pretty spot on. Anything that’ll help assault victims report their rapes, if they should so choose.

  49. PrettyAmiable
    PrettyAmiable June 11, 2011 at 3:22 pm |

    Ruling*, not law

  50. Aaron W.
    Aaron W. June 11, 2011 at 4:04 pm |

    PrettyAmiable: Lara Emily Foley: Can you please understand the difference between sex between two conscious people and sex between one conscious person and one unconscious person, can we please please please see the difference? Is it that difficult?
    THIS. I cannot imagine a more disingenuous comparison.

    Of course there is a difference. I don’t think anyone is saying that there is no difference between those situations.

    All I am saying (and all I see others up-thread suggesting) is that both are types of sexual encounters that people can (and do) consent to and which people should be legally allowed to consent to if they want to. I can consent to have sex with my partner while I am fully conscious and I can consent to a sexual encounter with my partner which I am unconscious for part or all of. If I ask that my partner engage in sexual activities with me while I am unconscious and if my partner does so with my full, enthusiastic, advance consent, the law should not treat my partner as a rapist.

  51. PrettyAmiable
    PrettyAmiable June 11, 2011 at 4:21 pm |

    I’m suggesting the comparison is so unbearably disingenuous that it completely lacks relevance for this case.

    And FYI, if you don’t want the law to treat your partner as a rapist, I recommend not filing a complaint against zir. And FFS, I’m really sick of these hypotheticals. When someone else turns in your partner for your consensual interactions just because a Canadian ruling says you were unable to consent to sex while asleep AND the police actually take the rape allegations seriously, I will apologize. But honestly, this is the most obscenely ridiculous thing I’ve ever heard when all we bleat on about as feminists is rape culture. THIS IS RAPE CULTURE. Being terrified over false rape allegations like it’s a thing that happens all the fucking time is RAPE CULTURE. Wanting to reduce recourse for rape victims because OMG FEAR-MONGERING OVER POTENTIAL FALSE RAPE ALLEGATIONS is RAPE CULTURE. I’ve participated in waking up sex before, but I’m not pissing my pants that someone’s gonna arrest me for it. But frankly, I am terrified that someone will once again try to rape me in my sleep and claim that I consented to it in advance while I was drunk.

  52. Miss S
    Miss S June 11, 2011 at 5:54 pm |

    I’m seconding PrettyAmiable on this one. If you are worried that your sexual activities are going to end up with you being charged with rape, SOMETHING IS SERIOUSLY WRONG AND YOU SHOULD PROBABLY STOP WITH THOSE PARTICULAR ACTIVITIES UNTIL YOU ARE NO LONGER WORRIED ABOUT THAT.

    But haven’t people gotten in trouble before for having sex that society deemed abnormal? For instance, two men having sex. Is it fair to tell people who are engaging in consensual sexual activity with other adults that “something is seriously wrong with them”?

    I understand your point, but telling people that something is wrong with them for engaging in any type of sexual activity with a consenting adult is going a bit too far.

  53. Aaron W.
    Aaron W. June 11, 2011 at 6:53 pm |

    PrettyAmiable,

    I’m not talking about false rape allegations – I’m not worried about my partner reporting me for consensual sex and I’m not going to report my partner for consensual sex. But, guess what, people are arrested for consensual sex without their partners reporting them. It happens. It happens because the police want to target “sexual deviants”, it happens because neighbors report people strange sounds, it happens because sometime police stumble upon it, and sometimes it happens because people are unintentionally harmed. It happens. And because courts have said there is no such thing as consent to X, people have been unable to defend themselves from the charges by telling the jury that their partner consented to the activities in question, people have been unable to defend themselves by calling their partner to the stand and having their partner testify that they did, indeed, consent to the activities in question.

    I’m not afraid someone will say I raped them, but I am nonetheless afraid because some of the sexual activities I engage in are illegal (depending on the jurisdiction most BDSM is potentially criminal and I know that it is in my state). I do things that I or my partner could go to jail for. I do things with actively, enthusiastically, consenting partners that the courts have decided people can’t consent to, and that puts me and my partners in real (not theoretical!) danger. I do things with actively, enthusiastically, consenting partners that people have go to jail for. I’m happy that the activities you choose to engage in are legal and that you can see this as a theoretical problem, but I’m not so lucky and the law should not be such that my consensual sexual activities are criminal. So this is not theoretical for me.

  54. Lara Emily Foley
    Lara Emily Foley June 11, 2011 at 9:00 pm |

    Miss S:
    I’m seconding PrettyAmiable on this one. If you are worried that your sexual activities are going to end up with you being charged with rape, SOMETHING IS SERIOUSLY WRONG AND YOU SHOULD PROBABLY STOP WITH THOSE PARTICULAR ACTIVITIES UNTIL YOU ARE NO LONGER WORRIED ABOUT THAT.

    But haven’t people gotten in trouble before for having sex that society deemed abnormal? For instance, two men having sex. Is it fair to tell people who are engaging in consensual sexual activity with other adults that “something is seriously wrong with them”?

    I understand your point, but telling people that something is wrong with them for engaging in any type of sexual activity with a consenting adult is going a bit too far.

    ARRRRRRRRRRRRRRGH

    Two men having sex were prosecuted not because of the sex they were having but because of an anti-gay bias in fucking society. It was the law’s best way of criminalizing being gay, the sex was honestly secondary. I’m sick sick sick of this comparison it doesn’t fly there is no logical argument against banning gay sex between two consenting and conscious men (or women). There is damn good logic against creating a law that empowers rapists by giving them the ability to say “hey she said I could do all that while she was asleep, swear to god”. Consent is fucking hard enough to disprove as it is let alone if we start saying unconscious women (or men for that matter) can totally legally consent.

  55. Aaron W.
    Aaron W. June 12, 2011 at 8:27 am |

    Anoushka,

    Somehow I missed your reply yesterday and I’m sorry I did and I really appreciate it. I think you are spot on.

    Lara Emily Foley,

    Are you saying that a person can’t consent in advance to sexual contact while that person is unconscious? Or Are you saying that they can but that it is better if the law not recognize that fact because refusing to recognize that people can consent in advance makes it easier to put rapists in jail?

  56. Pidgey
    Pidgey June 12, 2011 at 3:45 pm |

    Thanks for the follow-up post Anoushka. It addresses my thoughts much more eloquently than I ever could. I do think this ruling will do much, much more good than its small potential for injustice. I know it is difficult to write laws that reflect the idea of enthusiastic consent. We live in a culture of rape where it is very difficult to get a conviction, so I think that the law must lean more towards convictions than it currently does. And this ruling will help with that.

    My intent was to point out there are sexual activities that could be illegal under this law which I think still meet the standards of enthusiastic consent. I do recognize that (if I lived in Canada where this ruling occurred) the chance I would face prosecution for enthusiastically consensual acts is still negligibly small. But it does suck a bit to have the law saying what you want to do is wrong even when enthusiastic consent is present. And it sucks a whole lot that my risk of any prosecution is significantly lower because I am straight and white. Though that is a problem of the criminal justice system in general and not this ruling.

  57. PrettyAmiable
    PrettyAmiable June 12, 2011 at 9:50 pm |

    Aaron W.: I’m happy that the activities you choose to engage in are legal and that you can see this as a theoretical problem, but I’m not so lucky and the law should not be such that my consensual sexual activities are criminal.

    I really don’t know what kind of a fucking asshole you have to be to call me “lucky” about anything when the reason I’m so happy about this ruling is because it addresses a specific kind of sexual assault that happened to me, one that I mentioned above. You’re right, I’m real fucking lucky because we all know that having-vanilla-sex is a rape trump card. Seriously, fuck you.

    Next time you want to piss and moan at me, a woman who is living in fear of getting sexually assaulted again, about a ruling that could have helped me when I experienced a trauma that is widely swept under a rug because you possibly see an adverse side effect that might by some comparatively lower probability affect you, here’s an idea: approach it from the perspective that the intent of the ruling is AWESOME – how can we tighten up the language so it doesn’t fuck over innocent bystanders? I’m guessing you might not piss off any survivors with that kind of comment.

    And I don’t want to speak for Lara, but I’m deeply concerned that you don’t acknowledge in your address to her that consent could have changed while unconscious, even if given beforehand, without the conscious person’s knowledge. I don’t know if this is a mistake in language (and I’m really trying to be generous to some prick who called me “lucky” and assume that’s all it is) or something more problematic. But FYI.

  58. Aaron W.
    Aaron W. June 13, 2011 at 9:42 am |

    PrettyAmiable: I really don’t know what kind of a fucking asshole you have to be to call me “lucky” about anything

    You know what, fuck you. If you live in a world where your sexuality is not criminal, then you are fucking lucky. If you live in a world where you can see this ruling and not stop to think about how it further criminalizes your sexuality and the sexuality of your friends and lovers then you are fucking lucky. And if you don’t know how traumatizing it can be to have your sexuality be criminal, then you are fucking lucky.

    PrettyAmiable: you possibly see an adverse side effect that might by some comparatively lower probability affect you, here’s an idea: approach it from the perspective that the intent of the ruling is AWESOME – how can we tighten up the language so it doesn’t fuck over innocent bystanders?

    And here is some more of how you are lucky — because these sort of rulings do affect me, full stop. It’s not that they might or could. It’s that they do. These sorts of rulings hurt the BDSM community from the moment they are handed down. And that you can look at this ruling and think that it only might affect me means you are lucky.

    PrettyAmiable: I’m deeply concerned that you don’t acknowledge in your address to her that consent could have changed while unconscious, even if given beforehand, without the conscious person’s knowledge.

    I’m not sure why I should have addressed this, since I don’t see Lara Emily Foley raising it as an issue and since all I was doing was asking for a clarification of the position being advanced.
    But since you raised it I’ll try to address it now. I don’t think that is possible. I only have my own experiences of being unconscious to go on, but when I am unconscious I lack the ability to change my mind about anything. (And I don’t think this makes advanced consent impossible, it just makes it really important to be exposit about it) Yes, consent could be withdrawn in the moments before unconsciousness or the moments after regaining consciousness, but in that regard it is no different from any other sexual encounter – each partner is responsible for making sure the other(s) are still consenting to the ongoing activity and to stop immediately if/when consent is withdrawn.

    Look, if the courts said that no one can consent to sex period, it would make it much easier to convict actual rapists, since they could no longer use lies about consent as a defense. But no one is advocating for that because so many people engage in consensual sex. What is happening here is that you are advocating for a law that says people can’t consent to a specific type of sex because doing so makes it easier to convict rapists, since they can no longer use lies about consent as a defense. The only difference is that this law targets a type of sex that relatively few people actually engage in and that people who don’t engage in it tend to look down on that type of sex. And that’s not ok. It just isn’t.

  59. umami
    umami June 13, 2011 at 11:57 am |

    Aaron, where you quoted PA you cut off the quote mid sentence. Did you actually read the second half of the sentence you quoted?

    Where the hell do you get off ignoring that? What the fuck is wrong with you?

    Also do you really think, on a purely practical level, that the probability of any given male BDSM practitioner getting legally prosecuted for their practice is in any way comparable to the probability of any given woman getting raped, no matter how vanilla or kinky said woman might be?

    Do you even begin to get how inappropriate it is to tell women they’re “lucky” because they’re not as oppressed for their sexuality as you are, in a thread that is about rape, to a woman who has said she’s been raped?

    I’m just so disgusted by everything about you right now.

  60. Q Grrl
    Q Grrl June 13, 2011 at 1:24 pm |

    And if you don’t know how traumatizing it can be to have your sexuality be criminal, then you are fucking lucky.

    @Aaron W: One could potentially theorize that just about every woman who has been raped and has been through the court system to prosecute her rapist has had her sexuality criminalized, especially when her rapist(s) walk because of what she was doing just prior to the rape.

    Also, comparing consensual gay male sex to women being raped? Logic fail.

  61. debbie
    debbie June 13, 2011 at 2:05 pm |

    Wow. This thread takes what about the menz to a whole new level! Women who have been sexually assaulted are asking for it and of lying about rape but clearly we don’t know anything about having our sexually criminalized!

    Something that is also being left out of this discussion – the defendant in this case had been repeatedly convicted of domestic violence.

  62. Aaron W.
    Aaron W. June 13, 2011 at 9:07 pm |

    umami: Aaron, where you quoted PA you cut off the quote mid sentence. Did you actually read the second half of the sentence you quoted?

    Where the hell do you get off ignoring that? What the fuck is wrong with you?

    Sure I did. I actually have two reasons I cut the sentence there (and it’s not like the full thing wasn’t a post or two up so people couldn’t read the context). First, because I don’t like it when people talk about my experiences as the victim of sexual assault as if they know what the hell they are talking about so I try to show others the same courtesy that I’d like to be shown. Even if those people think I’m a prick. Second, because PrettyAmiable was describing the motive behind supporting an immoral law, and frankly since I think the law is immoral I don’t care why PrettyAmiable supports it. If PrettyAmiable or you or anyone else support restricting my bodily autonomy I simply don’t care why you support that restriction. Good reason, bad reason, or no reason at all, it’s all the same, because there is no motive that makes that ruling defensible.

    umami: Also do you really think, on a purely practical level, that the probability of any given male BDSM practitioner getting legally prosecuted for their practice is in any way comparable to the probability of any given woman getting raped, no matter how vanilla or kinky said woman might be?

    This (the part about the BDMS “Practitioner” being male) is where I LOLed at your comment. I actually have a particular case in mind when I talk about this. I spent several years in “liberal” Massachusetts and the kink community is still scared as a result of the local laws and the Paddleboro case (look it up). In that case the person arrested and charged with assault with a deadly weapon was a woman who was spanking another woman with a wooden spoon. Let me repeat that she was arrested and charged with assault with a deadly weapon for hitting a consenting adult with a wooden spoon (charges were thrown out about a year later because the cops had exceeded the area specified by the search warrant). But, because the law says that there is no such thing as consent to assault with a deadly weapon (and because more or less anything that isn’t a part of your body is a deadly weapon in MA) the defendant would have gone to jail were it not for the fact that the evidence against her came from the cops entering an area not covered by their search warrant. (P.S. The cops were there because they decided that private sex party = brothel). Also, I laughed because I found the sexist assumptions built into the comment to be ironically amusing.

    But, I didn’t want to cut off your full sentence. Yes, I know women are more likely to be raped than a person engaged in consensual BDSM is to be arrested for the consensual BDSM. Men are more likely to be raped too. The solution to that is to stop rape, not to change the law so that an entire category of consensual sex becomes rape. You want to reduce rape and so do I, you want to put more rapists in jail and so do I, but what I don’t think is ok is changing the law so that it defines away the possibility of a type of consensual sex (and when it does so at the expense of my community I get extra angry about it).

    umami: Do you even begin to get how inappropriate it is to tell women they’re “lucky” because they’re not as oppressed for their sexuality as you are, in a thread that is about rape, to a woman who has said she’s been raped?

    I don’t think I said anything inappropriate and I stand by what I said. The fact that someone is a survivor does not mean that that are not privileged. And anyone who can respond to legitimate and real concerns about criminalizing “deviant” sexuality is clearly coming from a place of privilege. And if they can live in that privilege and not even see it, then yeah they are lucky.

    I’m a fucking survivor, and that doesn’t mean I’m not lucky that my desires are primarily heterosexual and that I was able to marry the person I wanted to. It doesn’t mean I’m not lucky I’m a man and I can express my interest in sex without societal condemnation. It doesn’t mean I’m not lucky to benefit from all sorts of privilege. And it sure as hell doesn’t mean that I have no obligation to recognize my privilege where it exists and try to check it at the door.

    umami: I’m just so disgusted by everything about you right now.

    Not really my problem, but if unloading on me makes you feel better go right ahead.

  63. Aaron W.
    Aaron W. June 13, 2011 at 9:12 pm |

    Q Grrl: One could potentially theorize that just about every woman who has been raped and has been through the court system to prosecute her rapist has had her sexuality criminalized, especially when her rapist(s) walk because of what she was doing just prior to the rape.

    One could, and the moral of that story is that criminalizing consensual sexual activity is bad. How you get from that to the idea that what we should do is criminalize even more sexuality is beyond me.

    Q Grrl: Also, comparing consensual gay male sex to women being raped? Logic fail.

    Yes if I had made that comparison it would be a logic fail. But the comparison was between consensual gay male sex and consensual BDSM (not rape). And I think that’s a valid comparison.

  64. Aaron W.
    Aaron W. June 13, 2011 at 9:22 pm |

    debbie: Wow. This thread takes what about the menz to a whole new level!

    Actually I’m concerned about all genders of people. You do know that it’s not just men who top in BDSM circles, right? You do know it’s not just men who are actually arrested for topping, right?

    debbie: Women who have been sexually assaulted are asking for it and of lying about rape but clearly we don’t know anything about having our sexually criminalized!

    No one here is saying women (or men) who have been assaulted are “asking for it” or “lying about rape”.

    But I will say that when someone responds to concerns about the law defining out of existence the possibility of a type of sexual contact with:

    PrettyAmiable: And FYI, if you don’t want the law to treat your partner as a rapist, I recommend not filing a complaint against zir.

    and then behaving as if the concern is purely hypothetical, then that person has no idea about the realities of having their sexuality criminalized.

  65. Shaun
    Shaun June 13, 2011 at 10:08 pm |

    Aaron, since you mentioned being concerned with all people who practice BDSM, I’m going to go out on a limb and say that a female top’s chances of being raped in a state of unconsciousness are higher than her chances of being arrested for practicing consensual BDSM with a partner. As is a queer man’s. For that alone, that makes this a net gain for the BDSM community, because it will help more BDSM practitioners than it hurts.

  66. Ens
    Ens June 14, 2011 at 3:51 am |

    First off, this isn’t a new law, this is a court ruling on how existing laws and rights work. It was decided based on the existing consent laws and not solely on the basis of Charter rights, so for better or for worse an actual law can be passed to adjust this or even totally reverse it.

    I like what PrettyAmiable suggested here and I’m disappointed that Aaron dismissed it rather than trying to engage: “how can we tighten up the language so it doesn’t fuck over innocent bystanders”? I think this is totally doable. My suggestion is to pass a law specifically addressing this issue where it’s not impossible to give “advance consent” for when you are unable to communicate consent, but that under such circumstances advance consent can be retroactively withdrawn, in recognition of the fact that the victim didn’t have the opportunity to withdraw consent at the time of the act but had the right to do so.

    That way the scenario where a 3rd party reports you (which has happened and is potentially a real problem) is not criminalized and your behaviour does not have the stigma of being illegal and allowing all of the “sexual adventures” you want, while still totally retaining all of the benefits of this ruling in relation to prosecuting rapists. As far I can see, it’s win-win.

  67. umami
    umami June 14, 2011 at 6:17 am |

    Also, I laughed because I found the sexist assumptions built into the comment to be ironically amusing.

    Yes, I’ll admit it, I assumed you were male. Based on your name. But you are, apparently, so what’s your point again?

    It was your privilege I was pointing out to you. Not the privilege of the woman who was arrested. Yours.

  68. Aaron W.
    Aaron W. June 14, 2011 at 7:32 am |

    Shaun: Aaron, since you mentioned being concerned with all people who practice BDSM, I’m going to go out on a limb and say that a female top’s chances of being raped in a state of unconsciousness are higher than her chances of being arrested for practicing consensual BDSM with a partner. As is a queer man’s. For that alone, that makes this a net gain for the BDSM community, because it will help more BDSM practitioners than it hurts.

    I don’t disagree with the odds you suggest here — I think you are absolutely right. But, I disagree with you conclusion.

    The chance of any person being raped is far greater than their chances of being arrested for practicing consensual sex with a partner (false reports of rape are very very rare and real rape is far too common). Would a law that says you can’t consent to sex at all helps more people who have sex than it hurts? And even if it would, would you support such a law?

    umami: Yes, I’ll admit it, I assumed you were male. Based on your name. But you are, apparently, so what’s your point again?

    It was your privilege I was pointing out to you. Not the privilege of the woman who was arrested. Yours.

    A for effort and all that but really? When you were talking about “any given male BDSM practitioner” you actually meant “Aaron W.”? I’m sorry but I don’t buy it.

    But A for effort and bonus points for totally ignoring all the substantive points I raised in my comment in the process. So well done.

  69. matlun
    matlun June 14, 2011 at 7:35 am |

    I think the comparison the the BDSM legal problems are very applicable here (even if there are differences). The legal problems for the BDSM situation is that you are not legally allowed to consent to assault (it varies a bit between jurisdiction, but basically if the torture/assault is classified as “severe enough” your consent becomes irrelevant from a legal perspective). The classical example is the Spanner case from the UK: http://en.wikipedia.org/wiki/Spanner_case

    This is fairly similar to this case: Even if you have given explicit consent to some specific treatment, this is not respected by the courts. I find this problematic.

    Also, accepting unjust laws under the hope that “no one will misuse this law” is not a good attitude IMO. The unintended consequences are no less important for being unintended…

  70. umami
    umami June 14, 2011 at 7:40 am |

    Well, yeah, if you’re going to completely misrepresent something that I said, then I’ll focus on correcting your misrepresentation. If you want an actual discussion about your “substantive points” then… don’t do the misrepresentation thing.

  71. PrettyAmiable
    PrettyAmiable June 14, 2011 at 5:19 pm |

    @umami, thanks.

    Aaron, this has been fun. Frankly, I can’t engage with someone who whines about other people’s privileges while acting on male privilege. No, I do not think that your concerns are more important than my concerns. No, I am not lucky, and I do not agree that luck = privilege. That is literally the first time I’ve ever read someone conflating those two words. The reason you’re getting push back isn’t because people doubt I have privilege (I have tons!) but because calling someone lucky after she talked about her sexual assault makes you a scumbag. No, I do not respect anyone who ignores my suggestions, especially when they are ignored a second time when another commenter (Ens) brings up that they’re actually pretty good. It’s been real, but I don’t have time for disingenuous-guy-douchebags.

  72. Aaron W.
    Aaron W. June 14, 2011 at 7:35 pm |

    umami: Well, yeah, if you’re going to completely misrepresent something that I said, then I’ll focus on correcting your misrepresentation. If you want an actual discussion about your “substantive points” then… don’t do the misrepresentation thing.

    See now you’re not even trying. I quoted you verbatim and I quoted every single thing you said in your first post so it’s not like I took anything out of context.
    In responding to you saying something ridiculous about “any given male BDSM practitioner”, I pointed out in passing the sexist assumption that was underlying that comment (namely that male=top and female=bottom). You response was that “any given male BDSM practitioner” actually just meant me. I’I certantly didn’t misrepresent what you said, if that was, in fact, what you meant I (reasonably I think) misunderstood it, but that reading of what you wrote is so far from plausible that I, frankly don’t give it much credence. Now if you can explain to me how what you wrote:

    umami: Also do you really think, on a purely practical level, that the probability of any given male BDSM practitioner getting legally prosecuted for their practice is in any way comparable to the probability of any given woman getting raped, no matter how vanilla or kinky said woman might be?

    makes any sense at all given the gloss you now suggest, I’d be more than happy to respond to what you meant rather than what I (again, I think reasonably) took you to mean.

  73. Aaron W.
    Aaron W. June 14, 2011 at 8:07 pm |

    PrettyAmiable: Aaron, this has been fun. Frankly, I can’t engage with someone who whines about other people’s privileges while acting on male privilege.

    Ironically I don’t enjoy engaging with someone who whines about other people’s privileges while acting on, for lack of a better term, vanilla privilege. (I especially don’t enjoy people who respond to having their privilege pointed out be getting defensive and suddenly decide that the person pointing out their privilege is the one who is really acting out of privilege, but that’s life.)

    PrettyAmiable: No, I do not think that your concerns are more important than my concerns.

    I don’t think my concerns are more important than your concerns either. But,I do think (as I said above) that whatever your concerns are they are leading you to advocate for an immoral law. And I articulated a principle that I think supports my position – that all people have a right to bodily autonomy and that laws which infringe on bodily autonomy are immoral. And I think that’s true independent of my concerns (which may not be more important than yours but which are, contrary to what you said, real and not hypothetical).

    PrettyAmiable: No, I am not lucky, and I do not agree that luck = privilege. That is literally the first time I’ve ever read someone conflating those two words.

    Then I was unclear and that’s on me. I mean that you are privileged and that the way you dismissed the real concerns of BDSMers was you clearly acting out of that privilege. And I stand by that.

    PrettyAmiable: The reason you’re getting push back isn’t because people doubt I have privilege (I have tons!) but because calling someone lucky after she talked about her sexual assault makes you a scumbag.

    And treating the real concerns about the real persecution of people who practice BDSM as if they were purely hypothetical makes you a sucmbag. And, honestly if I act like a scumbag toward someone who acts like a scumbag to me I’m not going to lose a ton of sleep over it.

    blockquote cite=”comment-371374″>

    PrettyAmiable: No, I do not respect anyone who ignores my suggestions, especially when they are ignored a second time when another commenter (Ens) brings up that they’re actually pretty good.

    Come on, be honest, you didn’t respect me before I ignored your suggestion (you called me “some prick”.

    But I ignored your suggestion because, to the extent it was a suggestion, and not just you yelling at me, it was rather without substance. The law says “X does not exist” how do you sugest “tightening up the language” so that it recognizes that “X exists”. I don’t see a way to do it (Ens did sugest a substantive solution that I had hoped to have time to respond to tonight and if I can find the damn article I’ve been looking for all day I will, but the short version is, Ens’s suggestion is an improvement over the status quo and not inherently immoral but I think it is flawed in a number of ways.)

    PrettyAmiable: It’s been real, but I don’t have time for disingenuous-guy-douchebags.

    Fair enough. For the record though, I may be being a douchebag (I don’t think I am, but it’s happened in the past and may happen again), but I’m not being disingenuous.

  74. Aaron W.
    Aaron W. June 14, 2011 at 9:11 pm |

    Ens: I like what PrettyAmiable suggested here and I’m disappointed that Aaron dismissed it rather than trying to engage: “how can we tighten up the language so it doesn’t fuck over innocent bystanders”? I think this is totally doable. My suggestion is to pass a law specifically addressing this issue where it’s not impossible to give “advance consent” for when you are unable to communicate consent, but that under such circumstances advance consent can be retroactively withdrawn, in recognition of the fact that the victim didn’t have the opportunity to withdraw consent at the time of the act but had the right to do so.

    Short version: This would be an improvement over the status quo, but I wouldn’t support this either.

    Long version:
    I don’t think your suggestion amounts to “tightening up” the language of the ruling, I think it amounts to throwing out the ruling (which says there is no such thing as advanced consent) and replacing it with something better (which recognizes the reality that advanced consent exists).
    I don’t think the language you propose outright restricts anyone’s bodily autonomy and on that ground alone I think it is infinitely better than the status quo. But, that it is not immoral is about the only thing I see that makes it better than the status quo. I have several problems with it, but the two I think are most obvious are below.

    First, I think the rule you suggest treats sexual consent as if it is a creature all its own, rather than merely a type of consent in general. Consent is consent, and consent to sex is just like any other type of consent. Therefore, I think that all consent should be treated the same way at law. But, apply your rule to the place we most commonly see advanced consent, the field of medicine, and the rule falls apart right away. If I tell a doctor that they may knock me out, cut me open, and mess around with my internal organs, and if they do so, should I be allowed, upon waking, to have them charged with battery? I think the answer is obviously not. But if I can’t “retroactively” (to use your language) withdraw my advanced consent to surgery, why should I be able to “retroactively” withdraw my consent to sex?

    Second, I don’t think you can “retroactively” withdraw consent. Let me be clear, I think it is obvious that you can consent to something and then withdraw that consent and I think it is obvious that any person has the right to withdraw consent to any activity at anytime and that they have the right and other people have the obligation to have that withdraw respected immediately. But I don’t see how consent can be withdrawn after the event you consented to is over. It isn’t a coherent concept, and I think that becomes clear when you try to think about what it would be to retroactively give consent. It seems to me that consent operates in the present and the future but that consent cannot change the past. Actually I think this is true about all things which are the product of the will – the will can change the present and the future, but no act of willing can ever change the past.

  75. groggette
    groggette June 15, 2011 at 9:45 am |

    I didn’t realize all it took to be “vanilla” was not wanting to be raped in your sleep.

  76. Q Grrl
    Q Grrl June 15, 2011 at 10:02 am |

    Groggette, that’s just your privilege blinding you to reality.

    I think I want a shirt that says “Vanilla Privilege”, but it’s almost too risque just thinking about it!

  77. PrettyAmiable
    PrettyAmiable June 15, 2011 at 10:11 am |

    Hey, moderators? Y’all are busy, and I get that, but there’s gotta be something in the comment policy about a guy telling a woman talking about her assault and how important a ruling that would have helped her is that she’s whining. “Pro-feminist discussion is important to us.” I would argue that this is decidedly anti-feminist.

  78. PrettyAmiable
    PrettyAmiable June 15, 2011 at 10:12 am |

    Q Grrl: I think I want a shirt that says “Vanilla Privilege”, but it’s almost too risque just thinking about it!

    Just don’t wear it to bed.

  79. Aaron W.
    Aaron W. June 15, 2011 at 10:42 am |

    PrettyAmiable: Hey, moderators? Y’all are busy, and I get that, but there’s gotta be something in the comment policy about a guy telling a woman talking about her assault and how important a ruling that would have helped her is that she’s whining. “Pro-feminist discussion is important to us.” I would argue that this is decidedly anti-feminist.

    Really? You know you did the same thing right? You accused me of whining when I was talking about my experience as a survivor of sexual assault. You know you did that right?
    You realized I parroted back your exact language on purpose, right? I did it because I didn’t see any way to elevate the discourse, but I sure as hell wasn’t going to lower it any further.
    But if you get to tell me I’m whining, then I get to tell you that you are. If you get to do it when I’m talking about my experience with sexual assault (which you totally ignored and I totally didn’t even yell at you about ignoring it) then I get to do it to you when you are talking about your experience with sexual assault. If doing so isn’t ok, then you shouldn’t have done it.

  80. debbie
    debbie June 15, 2011 at 10:56 am |

    Aaron, this ruling isn’t about retroactively withdrawing consent. It’s a ruling on a case where a woman was sexually assaulted by her partner while she was unconscious. She says that she consented to being vaginally penetrated while unconscious, but when she woke up she was being anally penetrated. Although another commenter wrote that the woman admitted that she only complained after she had a fight with her partner, her partner has a history of violence, including violence against the complainant. I don’t see how the facts in this case relate to retroactive withdrawal of consent, but I’m not seeing it.

  81. Aaron W.
    Aaron W. June 15, 2011 at 11:05 am |

    debbie: Aaron, this ruling isn’t about retroactively withdrawing consent. It’s a ruling on a case where a woman was sexually assaulted by her partner while she was unconscious. She says that she consented to being vaginally penetrated while unconscious, but when she woke up she was being anally penetrated. Although another commenter wrote that the woman admitted that she only complained after she had a fight with her partner, her partner has a history of violence, including violence against the complainant. I don’t see how the facts in this case relate to retroactive withdrawal of consent, but I’m not seeing it.

    Yes, I agree, I was responding specifically to the suggestion of Ens, above, about retroactive withdraw of consent. I know the ruling is not about that, but since Ens addressed the suggestion to me (and since PrettyAmiable thought it was rude for me not to respond to it) I thought I should address it. I agree whole heartedly that this case is not about retroactive withdrawal of consent, this case is about rape and a rapist lying about consent to try to avoid being punished for being a raping piece of shit.

  82. PrettyAmiable
    PrettyAmiable June 15, 2011 at 11:06 am |

    PrettyAmiable: Frankly, I can’t engage with someone who whines about other people’s privileges while acting on male privilege.

    Decidedly NOT about your sexual assault. Actually about how you managed to derail a discussion about a ruling regarding a sexual assault victim in Canada to be about you and your needs, while simultaneously employing a healthy number of derailing for dummies tactics. And I’ve ONLY been talking about MY sexual assault about how this ruling has affected people who experienced a similar kind of assault. So yeah, saying I’m whining when I’ve only been speaking about my assault and how the intent of the ruling is completely just? Anti-feminist bullshit. Disingenuous nonsense is disingenuous. Nice try, asshole.

  83. annalouise
    annalouise June 15, 2011 at 12:22 pm |

    Wait, is there a straight guy arguing that a legal ruling protecting women from rapists is the equivalent to the persecution of gay people?

    Is this actually happening? What a world!

  84. Q Grrl
    Q Grrl June 15, 2011 at 12:53 pm |

    No, no, he’s not arguing about gay people. That’s the initial mistake I made with such flagrant language as “criminalization” of sexuality.

    In reality, I think he’s arguing that straight men who practice BDSM will be persecuted by this ruling. And then he’s using his sexual assault as proof that we don’t need to talk about women who have been raped, because, you know, once a man is assaulted the playing field is totes level.

  85. Jill
    Jill June 15, 2011 at 1:38 pm | *

    Ok, I apologize for not being around — I’m on vacation and haven’t been near a computer for more than a few minutes at a time since Friday morning, so I haven’t been checking comments here. But I’m shutting these down, because this is out of control. Apologies again.

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