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You don't have to be forced physically for it to count as rape/sexual assault as far as I am aware. Not objecting is the same as saying no effectively. You need

You don't have to be forced physically for it to count as rape/sexual assault as far as I am aware. Not objecting is the same as saying no effectively. You need active positive consent to be safe. If I'm wrong please correct me but from what I've read this seems to be the way it works.

cperciva 11y ago
It depends on the country. The broad concept that consent is required is something that most countries agree upon, but the fine details of what exactly constitutes consent vary. In Canada, for example, it is illegal to kiss your sleeping wife, because (a) a kiss is a sexual act, (b) there is no de minimis exception to sexual assault, and (c) even if your wife explicitly consented in advance to being kissed while asleep, that consent ended when she fell asleep (in spite of that being the precise circumstance to which she wished to consent). (R v JA) As another example, a man who lies about using birth control is committing a sexual assault, while a woman who lies about using birth control is not; the supreme court took the view that the possibility of becoming a mother is harmful, while the possibility of becoming a father is not. (R. v. Hutchinson) As far as I'm aware, no other legal jurisdiction has followed Canada's example in either of these contexts.
- mafribe 11y ago
  it is illegal to kiss your sleeping wife a man who lies about using birth control Aren't you a Canadian citizen? What are you doing to fight such insane laws?
  - cperciva 11y ago
    Yes, I am a Canadian. I'm not doing anything to actively fight these laws, but I do try to educate people when the opportunity arises; the first step to fixing bad law is to make people aware of the problems.
    - mafribe 11y ago
      Thank you. It might be interesting to reflect on the social conditions that must have prevailed for judges to believe that this is a defensible judgement. Legal decisions usually reflect the prevailing mores in the social milieu of judges (= upper middle class).
  - deleted 11y ago
    [deleted]
- mkaziz 11y ago
  If you become a father, won't you be obliged to pay child support? That's a long term drain on your resources you might not be ready for and that would be unfair if the woman lied to you about birth control.
  - cperciva 11y ago
    In the view of the Supreme Court of Canada, being required to pay child support to a child you never wished to father, does not constitute "harm". It may be worth noting here that child support is considered to be something to which the child is entitled, regardless of to whom the money is in fact paid; there have been cases where rapists have received court-ordered child support payments from their victims.
    - adekok 11y ago
      > It may be worth noting here that child support is considered to be something to which the child is entitled That's only half true. The truth is that the father is entitled to pay, in the "best interests of the child". But there is no requirement in law or in practice that the mother actually spends the money on the child. Or even that she's accountable to the the father (who typically has legal rights over the child), for how any of the money is spent.
  - SeanDav 11y ago
    It is unfair, but you are still liable for child support. The argument is that the child is your responsibility - if you don't want to risk having a child, don't have sex. Women have been known to take sperm from a used condom and impregnate themselves. If that happened to you, you would still be liable for child support.
    - adekok 11y ago
      > if you don't want to risk having a child, don't have sex. ... which applies only to one sex. Women can have an abortion, and choose to not be a parent. Men can't. That doesn't sound like equality to me. Western courts have held that men have absolute liability for their sperm. This includes the following situations: * your girlfriend lies about being on the pill * your girlfriend fishes the condom out of the garbage and impregnates herself * your girlfriends roommate fishes the condom out of the garbage and impregnates herself * your girlfriend impregnates herself with the leavings after giving you oral sex * as an underage boy, you are raped by an adult woman. The last one is surprising. http://articles.chicagotribune.com/1996-12-22/features/9612220045_1_pay-child-support-child-support-behalf http://articles.chicagotribune.com/1996-12-22/features/96122... The judge said "Victims have rights. Here, the victim also has responsibilities." The admitted and convicted pedophile has full custody of a minor child, and her victim is ordered to pay the criminal money... or go to jail for non-payment of support. I support equality. I have a hard time finding equality in the court decisions in this area.
- ifdefdebug 11y ago
  If you feel like kissing your sleeping wife, so you kiss her and she wakes up and sues you for being kissed, then you should be happy. Because you just learned how wrong you were feeling like kissing your sleeping wife and that it's time to move on...
  - cperciva 11y ago
    she wakes up and sues you for being kissed We're not talking lawsuits here. We're talking about criminal law, where there is no requirement for the alleged victim to feel aggrieved or even to consent to the prosecution. If you kiss your sleeping wife, then mention this fact in passing to a police officer, you could theoretically find yourself being arrested and thrown in jail, since you confessed to a serious crime.
- deleted 11y ago
  [deleted]
- rubberstamp 11y ago
  (c) even if your wife explicitly consented in advance to being kissed while asleep, that consent ended when she fell asleep (in spite of that being the precise circumstance to which she wished to consent). What exactly is the point of such a law?
  - colanderman 11y ago
    It's not a (legislated) law, it is case law; i.e. the question was brought before a judge because there was no existing law, and the judge decided that the existing law should be interpreted to include that proscription. The decision can be overturned by a higher court.
    - cperciva 11y ago
      The decision can be overturned by a higher court. There is no higher court than the Supreme Court of Canada.
DominikR 11y ago
> Not objecting is the same as saying no effectively. You need active positive consent to be safe. Very few countries have such laws. In most Western countries sexual intercourse without objection between two adults that are capable of consenting/objecting (no abuse of authority, no threat, no force) will not be regarded as rape. This would be a very extreme definition of rape, because when you think about it, who would actually commit the rape if both persons did not object? Did both persons rape each other?
- cperciva 11y ago
  Did both persons rape each other? Legally, yes. The same applies if both persons are too intoxicated to be able to consent; and in some states without "romeo and juliet" laws, if two underage persons have sex. Of course, it's up to prosecutors in such circumstances to decide whether to prosecute none, one, or both parties...
vacri 11y ago
> You don't have to be forced physically for it to count as rape/sexual assault as far as I am aware. Modern public opinion != legal opinion. It varies wildly between jurisdictions. And what's on the law books isn't necessarily what's effectively enforced. In some jurisdictions, there is no effective way to prosecute for rape within marriage. Whereas where I am, it's apparently legally required to continually get positive verbal consent throughout the act (as told to me by a legal student ~2 years ago), though this hasn't been tested in courts, and seems to be written to a fantasy of how humans behave; it doesn't matter how enthusiastic you are about getting consent, if you're not verbalising it constantly, then technically a crime is going on. Tough for you if you are turned off by talking during the act. Of course, take this to court and you're faced with the usual he-said/she-said problem of rape cases. Legal definitions of rape - the definitions that count - vary considerably.

cperciva 11y ago

It depends on the country. The broad concept that consent is required is something that most countries agree upon, but the fine details of what exactly constitutes consent vary. In Canada, for example, it is illegal to kiss your sleeping wife, because (a) a kiss is a sexual act, (b) there is no de minimis exception to sexual assault, and (c) even if your wife explicitly consented in advance to being kissed while asleep, that consent ended when she fell asleep (in spite of that being the precise circumstance to which she wished to consent). (R v JA) As another example, a man who lies about using birth control is committing a sexual assault, while a woman who lies about using birth control is not; the supreme court took the view that the possibility of becoming a mother is harmful, while the possibility of becoming a father is not. (R. v. Hutchinson) As far as I'm aware, no other legal jurisdiction has followed Canada's example in either of these contexts.

mafribe 11y ago
it is illegal to kiss your sleeping wife a man who lies about using birth control Aren't you a Canadian citizen? What are you doing to fight such insane laws?
- cperciva 11y ago
  Yes, I am a Canadian. I'm not doing anything to actively fight these laws, but I do try to educate people when the opportunity arises; the first step to fixing bad law is to make people aware of the problems.
  - mafribe 11y ago
    Thank you. It might be interesting to reflect on the social conditions that must have prevailed for judges to believe that this is a defensible judgement. Legal decisions usually reflect the prevailing mores in the social milieu of judges (= upper middle class).
- deleted 11y ago
  [deleted]
mkaziz 11y ago
If you become a father, won't you be obliged to pay child support? That's a long term drain on your resources you might not be ready for and that would be unfair if the woman lied to you about birth control.
- cperciva 11y ago
  In the view of the Supreme Court of Canada, being required to pay child support to a child you never wished to father, does not constitute "harm". It may be worth noting here that child support is considered to be something to which the child is entitled, regardless of to whom the money is in fact paid; there have been cases where rapists have received court-ordered child support payments from their victims.
  - adekok 11y ago
    > It may be worth noting here that child support is considered to be something to which the child is entitled That's only half true. The truth is that the father is entitled to pay, in the "best interests of the child". But there is no requirement in law or in practice that the mother actually spends the money on the child. Or even that she's accountable to the the father (who typically has legal rights over the child), for how any of the money is spent.
- SeanDav 11y ago
  It is unfair, but you are still liable for child support. The argument is that the child is your responsibility - if you don't want to risk having a child, don't have sex. Women have been known to take sperm from a used condom and impregnate themselves. If that happened to you, you would still be liable for child support.
  - adekok 11y ago
    > if you don't want to risk having a child, don't have sex. ... which applies only to one sex. Women can have an abortion, and choose to not be a parent. Men can't. That doesn't sound like equality to me. Western courts have held that men have absolute liability for their sperm. This includes the following situations: * your girlfriend lies about being on the pill * your girlfriend fishes the condom out of the garbage and impregnates herself * your girlfriends roommate fishes the condom out of the garbage and impregnates herself * your girlfriend impregnates herself with the leavings after giving you oral sex * as an underage boy, you are raped by an adult woman. The last one is surprising. http://articles.chicagotribune.com/1996-12-22/features/9612220045_1_pay-child-support-child-support-behalf http://articles.chicagotribune.com/1996-12-22/features/96122... The judge said "Victims have rights. Here, the victim also has responsibilities." The admitted and convicted pedophile has full custody of a minor child, and her victim is ordered to pay the criminal money... or go to jail for non-payment of support. I support equality. I have a hard time finding equality in the court decisions in this area.
ifdefdebug 11y ago
If you feel like kissing your sleeping wife, so you kiss her and she wakes up and sues you for being kissed, then you should be happy. Because you just learned how wrong you were feeling like kissing your sleeping wife and that it's time to move on...
- cperciva 11y ago
  she wakes up and sues you for being kissed We're not talking lawsuits here. We're talking about criminal law, where there is no requirement for the alleged victim to feel aggrieved or even to consent to the prosecution. If you kiss your sleeping wife, then mention this fact in passing to a police officer, you could theoretically find yourself being arrested and thrown in jail, since you confessed to a serious crime.
deleted 11y ago
[deleted]
rubberstamp 11y ago
(c) even if your wife explicitly consented in advance to being kissed while asleep, that consent ended when she fell asleep (in spite of that being the precise circumstance to which she wished to consent). What exactly is the point of such a law?
- colanderman 11y ago
  It's not a (legislated) law, it is case law; i.e. the question was brought before a judge because there was no existing law, and the judge decided that the existing law should be interpreted to include that proscription. The decision can be overturned by a higher court.
  - cperciva 11y ago
    The decision can be overturned by a higher court. There is no higher court than the Supreme Court of Canada.

DominikR 11y ago

> Not objecting is the same as saying no effectively. You need active positive consent to be safe. Very few countries have such laws. In most Western countries sexual intercourse without objection between two adults that are capable of consenting/objecting (no abuse of authority, no threat, no force) will not be regarded as rape. This would be a very extreme definition of rape, because when you think about it, who would actually commit the rape if both persons did not object? Did both persons rape each other?

cperciva 11y ago
Did both persons rape each other? Legally, yes. The same applies if both persons are too intoxicated to be able to consent; and in some states without "romeo and juliet" laws, if two underage persons have sex. Of course, it's up to prosecutors in such circumstances to decide whether to prosecute none, one, or both parties...

vacri 11y ago

> You don't have to be forced physically for it to count as rape/sexual assault as far as I am aware. Modern public opinion != legal opinion. It varies wildly between jurisdictions. And what's on the law books isn't necessarily what's effectively enforced. In some jurisdictions, there is no effective way to prosecute for rape within marriage. Whereas where I am, it's apparently legally required to continually get positive verbal consent throughout the act (as told to me by a legal student ~2 years ago), though this hasn't been tested in courts, and seems to be written to a fantasy of how humans behave; it doesn't matter how enthusiastic you are about getting consent, if you're not verbalising it constantly, then technically a crime is going on. Tough for you if you are turned off by talking during the act. Of course, take this to court and you're faced with the usual he-said/she-said problem of rape cases. Legal definitions of rape - the definitions that count - vary considerably.