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Author Topic: Supreme Court expected to tackle 'sleeping sex slave' question
shadowland
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quote:
Originally posted by katharina:
If you have sex with someone who hasn't given consent, then that's rape. There's no getting around it.

If two fifteen-year-olds have sex, are they both rapists? After all, minors can't technically give consent.
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kmbboots
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Shadowland, there are, if I recall correctly, various state laws on that very thing.
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Rakeesh
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Put another way, why is the person who didn't get clear consent *not* considered responsible for what happens while drunk...but the person who didn't *give* clear consent *is* responsible for what happens while drunk?

The funny thing is, we *do* hold him responsible in other areas of sexuality and intoxication. If he gives her an STD, for example, or a pregnancy results, he's not allowed (in the latter case legally) to say, "I was drunk! I didn't mean to!"

And, y'know, I don't have much patience for the 'that's not how it works' attitude towards getting consent in social situations. It 'just doesn't work like that' because, well, as sla society we've decided it's really awkward. We can un-decide that anytime, rather like we now generally do with things like condoms and other birth control/safe-sex methods.

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Stone_Wolf_
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quote:
If you have sex with someone who hasn't given consent, then that's rape.
This is not the legal definition of rape, thank God!

I think it's reasonable to expect someone to tell you when they are becoming uncomfortable in the process of a personal encounter and that everything should not have to be a before hand explicitly verbal consent issue.

May I cup your breast? May kiss you with the use of my tongue. May pet your groin region through your clothing? May I lick your neck? Etc etc etc.

How many millions of people who's partners never complained or even thought the sex was anything but consensual would you make into rapists if "If you have sex with someone who hasn't given consent, then that's rape." was made into a legal definition?

This definition is too hard line to exist in the real world.

Unwelcome sex...a more neutral phrase for sex which could range from a mistake of communication and no ill will to violent forced rape.

quote:
On the other hand if she doesn't, well sometimes 'unwelcome sex' will happen and it's nobody's fault-like it rained against the forecast or something. Except, well, it's actually the man *and* the woman's fault for getting so drunk in the first place.
Yes, it is both of their faults for putting themselves into a bad situation where their judgments were impaired and they might be physically unable to communicate their wishes.

No matter how drunk, if one can and does communicate, even once, that they want to stop, and it doesn't, then it is rape.

We are talking about a situation were someone is unable to do so. And they put themselves into that situational.

It is a rare circumstance, when someone would be so inebriated that they couldn't say "no" but could remain conscious. And in that very rare case, I say it is an unfortunate miscommunication which lead to a very negative experience, which should not brand the male as a rapist. But if there was a new law with degrees, then he should be found guilty of "unauthorized coitus", or whatever we name it.

katharina...so you have never ever ever had any sex without first giving explicit verbal consent, right? In or out of a relationship...ever...because if you ever didn't say "You have permission to have sex with me now." or equivalent, by your standards you turned your lover into a rapist.

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Stone_Wolf_
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quote:
Put another way, why is the person who didn't get clear consent *not* considered responsible for what happens while drunk...but the person who didn't *give* clear consent *is* responsible for what happens while drunk?
You have already acknowledged that I think it's both of their faults (which I've said from the start), so I don't know how you can say this honestly, unless this question is not aimed at me.
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kmbboots
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Stone-Wolf, how is that not a definition of rape? In most states, force or compulsion is no longer required (thank goodness) to demonstrate rape.

That said, consent doesn't always have to be verbal.

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Stone_Wolf_
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quote:
A criminal offense defined in most states as forcible sexual relations with a person against that person's will.
http://legal-dictionary.thefreedictionary.com/rape

quote:
That said, consent doesn't always have to be verbal.
So, a head nod? Written permission? A moan of pleasure? This is a can of worms here.

In the Bob/Olivia scenario, Bob mistakes a drunken grunt for consent...Kate says Bob is a rapist...I don't get it.

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katharina
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quote:
katharina...so you have never ever ever had any sex without first giving explicit verbal consent, right?
Right. This is absolutely, 100% correct.

I'm not impressed with the argument that anything short of "No" every fifteen minutes = implied consent because "that's how it is done."

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Stone_Wolf_
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kmbboots seems to disagree with you.

quote:
I'm not impressed with the argument that anything short of "No" every fifteen minutes = implied consent because "that's how it is done."
Who made that argument?
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katharina
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When you said earlier that what if he thought she'd changed her mind after saying no earlier.
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Stone_Wolf_
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Um, I never said anything even remotely close...if you are talking about "Scenario C", it was she said "yes", then got too drunk to communicate, and wished she could say no, and then I asked if it was rape.
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kmbboots
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Stone_Wolf, my point is that it is murky. Bob had best take care that consent is clear whatever the method of communication. I know that it is difficult but there are consequences to getting it wrong.
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katharina
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Exactly, kmboots.

It may be murky and "kills the mood" to actually obtain someone's consent, but it is a terrible thing to rape someone. Like condoms, some things are more important. Not raping someone counts as more important.

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Stone_Wolf_
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I agree with you 100%. And what I'm saying is that it is unfair and unjust to put 100% of those consequences on Bob, and classify him as one of the scum of the earth and give Olivia a 100% pass.

Many voluntary mistakes were made on both sides that made that scenario possible, and the repercussions should be bared by both equally.

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kmbboots
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If Olivia has been raped, she is hardly getting a pass.
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Stone_Wolf_
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I've stated before, and I'll state it again, explicit consent is better, especially when drinking and drugs are involved.

And, Bob is not a rapist.

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Stone_Wolf_
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That is the question of the hour kmbboots. Was she raped. We can not agree on that it seems.
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katharina
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What, exactly, did Olivia do? Drink with someone she thought she could trust? Unless she herself takes off Bob's pants, then no, responsibility is not equally shared.

So what was Olivia's mistake? Drinking? Being alone with a man? In your scenario, she's dressed and hasn't agreed to sex and can't even form complete sentences. How is she responsible?

If someone drinks and then drives, they are responsible for the death that might result. If someone drinks and then has sex with a woman who can't even form sentences, then they have committed rape.

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kmbboots
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Was Olivia consenting? If not, she was raped.
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katharina
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Maybe the problem is equating commiting rape with being a rapist. I don't care about the second label - it's final and and conflating.

It isn't black and white. There aren't the scum of the earth on one side and everybody else on the other. Regular people do harmful things. In your scenario, Bob could have been a regular person that did a very harmful thing, and that harmful thing has a name.

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shadowland
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quote:
Originally posted by kmbboots:
Shadowland, there are, if I recall correctly, various state laws on that very thing.

My point is that it is possible to have sex with someone who is unable to consent and not be regarded as a rapist.
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katharina
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What, does the law pass out scarlet "R"s now?

It is not possible to have sex with someone who is unable to give consent and not commit rape, albeit perhaps a lesser kind on that graduated scale, but still rape.

Whether committing rape makes someone a rapist is beside the point.

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Stone_Wolf_
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I never specified whether they were clothed or not, simply that Olivia was a willing participant to foreplay and that sometime before actual sex became unable to communicate or resist although she wished she could do both.

What did she do? She drank herself into a stupor with a complete stranger while participating in intimate relations with said stranger. All her own choices.

If she had managed to squeak out a "stop", and Bob didn't, it would be rape. Bob is just as drunk as she is, and thinks she is enjoying herself and would never do anything otherwise.

Why does he deserve to be punished in the same manor as those who are violent predators because of the consequences of both of their poor judgement?

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shadowland
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quote:
Originally posted by katharina:
It is not possible to have sex with someone who is unable to give consent and not commit rape, albeit perhaps a lesser kind on that graduated scale, but still rape.

So all minors that are legally having sex are also simultaneously raping and being raped?
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katharina
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So that drunken arm-waving grunt - she already had her clothes off? That's a new detail. What if she didn't?

By foreplay do you mean kissing? Kissing someone now means consent? Maybe french kissing? That's consent?

As for the level to which he deserves to be punished, that's more black and white thinking. There isn't a single a punishment and the choices are a firing squad or an absolvement. Even under current law, there are levels of punishment.

But if you insist on a total black or white, either/or universe, then yes, having sex with someone who can't even form complete sentences who did not give consent when they were sober is closer to an attack in the night than it is to consenual sex.

It is huge deal to the victim. It SHOULD be a huge deal to the perpetrator.

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kmbboots
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quote:
Originally posted by Stone_Wolf_:
Why does he deserve to be punished in the same manor as those who are violent predators because of the consequences of both of their poor judgement?

That is why we are talking about graduated degrees of rape.

Shadowland, yes, but as minors, they may not be legally able to be held accountable as adults would. Again, it differs from state to state.

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Stone_Wolf_
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Perhaps you should read the initial scenario, if you haven't, so we can make sure we are discussing the same thing.

We both have agreed that:

A. There should be a lessor offense for these types of circumstances.

B. That Bob only warrants a lessor offense.

We disagree that the title of "Sex Offender" should be attached to this lessor offense.

We disagree that this scenario should be classified as rape and about your definition of the word.

I'm not sure how much further this discussion can go.

ETA: We also disagree about the needfulness of explicit verbal consent.

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katharina
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Is it the word "rape" you're objecting to? Because most states call it sexual assault.

If you recoil from that as an ugly phrase, that's because sex without one's consent is an ugly, violent thing. Men SHOULD be careful of doing it, and should WANT to be sure it is welcome, especially when a woman is drunk. Her helplessness increases his responsibility, not lessens it.

It seems to me that you consider somewhere on the level of a speeding ticket. Do you even consider it a crime?

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kmbboots
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Stone-Wolf, how about involuntary sexual assault or negligent sexual assault?
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Stone_Wolf_
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You misinterpret my motives. I think rape (the intentional violent kind) to be such a reprehensible act that all rapists should be killed outright (in a perfect world) or at least locked away forever without the chance of getting out (in reality). Several members of my family were raped or molested and I have very strong feelings about it.

They were entirely blameless and victimized by evil men who deliberately and specifically violated them.

So forgive me if I do not like it when the idea of "rape" is used in the case of people who stack the deck so far against their favor and with people who made an honest mistake and have no ill will.

Bob should have to deal with repercussions, and so should Olivia, and they both need to learn from their mistakes so they do not repeat them.

I think I understand the reasons you have for your extreme (IMO) views, but I don't think the application of your morals are fair or just or even reasonable.

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Stone_Wolf_
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I think "involuntary sexual assault" is a good name.

What do you think the progression of punishment should be?

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katharina
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quote:
I think I understand the reasons you have for your extreme (IMO) views, but I don't think the application of your morals are fair or just or even reasonable.
Whoa - I call foul. Don't dismiss me and my opinions like that.

My reasons for all of the above is because there has been historically that a woman's body doesn't belong to herself, and because historically if a woman was alone with a man, then anything he did to her was fair game, and if she was raped it was her fault. THAT's the history of what I'm fighting against.

The personal morals I'm bringing into this is that people's bodies belong to themselves alone.

If you are referring to my morals concerning sexuality, the entire scenario, consent or not, is so against them that clearly the hypothetical they and I are not operating in the same universe.

The consent universe, though, and the bit about the default for sex being "no" EVEN if a woman drinks in public - that's the world we share.

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katharina
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quote:
Originally posted by Stone_Wolf_:
I think "involuntary sexual assault" is a good name.

What do you think the progression of punishment should be?

How about the same level as involuntary manslaughter, which is what someone would get if they killed someone if driving while drinking, or statutory rape.
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kmbboots
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Not sure yet about punishment.

Stone_Wolf, I understand your desire to make sure that violent, forcible assault should be severely punished. And I agree that a drunken idiot making an honest mistake is not the same. But (and this is important) what we are talking about is the sovereignty of a person over their own body. That is not something that is involuntarily relinquished because a person is foolish. Remember also, that we are coming from a not-entirely-over-yet history where "it was her fault for being in that neighborhood" or "she was asking for it, dressed like that", or even "she didn't fight very hard" was enough to get a rapist acquitted (if the police would even pay attention). "She shouldn't have gotten drunk" is pretty darn close to that.

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katharina
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quote:
I think rape (the intentional violent kind) to be such a reprehensible act that all rapists should be killed outright (in a perfect world) or at least locked away forever without the chance of getting out (in reality).
While I share the revulsion, I actually think such black and white views of it is standing in the way of seeing the real damage that could be happening in your scenario.

People, even those who commit rape, are not divided into the good guys and those who should be shot at dawn.

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Rakeesh
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I don't recall anyone suggesting constant ongoing verbal consent was required.

quote:
We disagree that this scenario should be classified as rape and about your definition of the word.
So what *is* rape, in your opinion? Physical force used, yes, we know that much. But it's not rape, to you, if a man 'reasonably' *thinks* he has consent, receives no explicit rejection, and goes ahead and has sex.

Do you see the problem here? This is what some folks are objecting to: in this outlook, women are required to stop a man from having sex with them if they don't want sex (this is before it starts, mind) if a few conditions are met, such as drinking together or kissing and flirting.

We've repeatedly come up against this and you say that no, sex isn't something a woman must opt out of...unless she's drinking with a man or kissing him.

quote:
What did she do? She drank herself into a stupor with a complete stranger while participating in intimate relations with said stranger. All her own choices.
Precisely. Nowhere there is the choice listed 'to have sex with Bob'. That's something Bob gets to do at that point unless she *specifically* opts out. You're suggesting that to get plastered with a guy and kiss him is de facto consent.

Now from a safety standpoint, well sure, I can get on board with that: be careful as a matter of practicality. You watch out for bad drivers not because it's your moral imperative to mitigate their bad driving, but because you don't want to be hit. Likewise one shouldn't get plastered with people they don't trust, not because they've got a moral imperative to stop others from doing things they don't agree to while drunk, but because-as a practical matter-bad things might happen.

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Stone_Wolf_
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Correct me if I'm wrong, but you believe this:

Without express verbal consent, each and every time, in or out of a relationship, any sex is rape.

My wife did not give me express verbal consent when we made our babies. And in your book that blessed moment of our joining to create life out of our love is rape.

I find this ridiculously unrealistic and even harmful as a definition of rape.

The idea that a pair of 15 year olds are raping each other when they have sex is also ridiculous.

I tell you what, my daughter is 5 months old, and if she is ever raped, I will happily spend the rest of my life in jail for slowly cutting the son of a bitch who did it into tiny pieces with a blunt, rusty knife.

You can have these strong feelings of wanting to protect woman's rights and seek justice for those who impinge them without a monolithic and tyrannical view.

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katharina
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Listen to Rakeesh - and pay attention to what I actually said. You know perfectly well I didn't say that.

When you distort my words to an extreme to make them sound stupid, then you're admitting that the real thing is something you can't argue against.

quote:
I tell you what, my daughter is 5 months old, and if she is ever raped, I will happily spend the rest of my life in jail for slowly cutting the son of a bitch who did it into tiny pieces with a blunt, rusty knife.

What if she was just drinking with a cute guy she met at a party and then kissed him but didn't think sex was even on the table and so didn't say "no" and then he had sex with her after she was so drunk she couldn't even form sentences? Would you then?

I don't think your view are tyrannical or monolithic. I think they are black and white, and that makes you want to give a pass to anyone who doesn't to deserve being shot.

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kmbboots
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Stone_Wolf, here is a little Hatrack hint. When I am agreeing enthusiastically with Katharina and even saying pretty much the same thing, you should pay attention. It isn't likely to be a peculiar moral quirk on the part of either of us. We don't agree all that often.

ETA: BTW, nice post(s), Kat.

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Stone_Wolf_
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kmbboots, I get that things were bad for a long time...in biblical times if a woman was raped near a city and was heard to scream, they killed the guy, but if she wasn't heard to scream, they killed her for seducing him, and if it wasn't near a city, they killed her because they couldn't know for sure if she screamed or not.

But this is not a good reason to move over to the other side too far.

quote:
But it's not rape, to you, if a man 'reasonably' *thinks* he has consent, receives no explicit rejection, and goes ahead and has sex.
Not "no explicit rejection", any rejection, any at all. I think there are more subtle physical body language at play most of the time and that drinking definitely makes it harder to pick up. But that while it can be rude or stupid to mess up these signals and try and go a little further then wanted, a simple correction is mostly all that is needed, and not a rape charge. Where the problem comes in is in this very rare scenario where someone is incapable of speaking, or moving, or anything else, but is not unconscious.

quote:
We've repeatedly come up against this and you say that no, sex isn't something a woman must opt out of...unless she's drinking with a man or kissing him.
No, I'm not. I'm suggesting that in the whole range of pillow play from a nip on the cheek to full sex, there is a huge amount of nonverbal communication which under normal circumstances is enough without explicit verbal consent.

quote:
When you distort my words to an extreme to make them sound stupid, then you're admitting that the real thing is something you can't argue against.
Now I'm getting mad. I invited you to correct me if I was wrong and then relayed my understanding of your beliefs and their repercussions. I can show you in past discussion why I would think you believe this if you like. I am requesting an apology for your above assumptive and ridiculous statement.

quote:
What if she was just drinking with a cute guy she met at a party and then kissed him but didn't think sex was even on the table and so didn't say "no" and then he had sex with her after she was so drunk she couldn't even form sentences? Would you then?
I'm really starting to believe you never even read the scenario that this discussion is based on. I'll help you out.
quote:
Originally posted by Stone_Wolf_:
Okay, Bob and Olivia met a bar, are halfway to the wind, and keep drinking together, stubble home and make out and drink and heavy pet, and drink and at some point Olivia looses the ability to do anything but groan and lift her arm weakly. Bob thinks (wrongly) her groaning and arm lifting is encouragement and has sex with her, the whole time thinking (wrongly) that Olivia is enjoying herself and welcoming of sex.

In the morning Bob has made Olivia breakfast in bed, brought flowers and can't stop smiling at his luck of finding such a great gal. Olivia has taken three showers and can't stop crying.

Is it rape?

Making out and heavy petting at someone's house is not the same as a kiss. So, are you asking me if my daughter WAS Olivia if I'd cut Bob to pieces? No, I wouldn't. I might punch him in the nose and then sit him down and lecture him about getting consent when drinking, but you best believe that my daughter would be getting a bunch more speeches about putting herself in harm's way.

What about my belief's are black and white?

What are you two agreeing on that I'm not?

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Rakeesh
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quote:
Without express verbal consent, each and every time, in or out of a relationship, any sex is rape.
At this point I don't know why you'd think this, when I've expressly said it's inaccurate in my last post.

quote:
My wife did not give me express verbal consent when we made our babies. And in your book that blessed moment of our joining to create life out of our love is rape.
You know Stone_Wolf, you're not the only one for whom this is an important moral and emotional issue, but you're continually re-casting what others say in deeply personal ways.

We're not talking about you and your wife. You're not strangers. I'll bet you know her well enough to know even without explicit verbal consent when she has in fact consented to sex. That's a different situation than being in a bar with someone, drinking and kissing.

Basically you're insisting that we are saying, "What happened was rape," and to you that's a strange, troubling view because to *you* that word is reserved for violence and beating over screams or deliberate drugging with intent.

Your're criticizing us for not using your definition of the word, when we've repeatedly explained we view it differently and then use our so-called unreasonableness as a criticism of the point.

quote:
I don't think your view are tyrannical or monolithic. I think they are black and white, and that makes you want to give a pass to anyone who doesn't to deserve being shot
This. Heck, you even suggested that in the case of drunken 'unwelcome sex', *AA* be a response by the law, as though it were just a matter of the booze. But it's not-we don't get to say, "I did something wrong while drunk, so I only get looked at for the drunk part."

No. It mitigates, it doesn't exonerate-and not just in the 'there are consequences' sense either. If we hold people responsible for their actions while drunk in other areas-such as in this case *the woman*, there's simply no reason not to hold the man responsible...unless drinking with a man and, say, kissing him is tacit consent. Unless it's the woman's responsibility to opt-out.

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katharina
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quote:
Making out and heavy petting at someone's house is not the same as a kiss.
So, it is the same thing as sex? Making out with someone is consent for sex?
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Rakeesh
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quote:
No, I'm not. I'm suggesting that in the whole range of pillow play from a nip on the cheek to full sex, there is a huge amount of nonverbal communication which under normal circumstances is enough without explicit verbal consent.

Who gets to decide when nonverbal consent is given? In your scenario, Bob is free to assume it's given because of cues that sometimes lead to sex, but if he's wrong, well, accidents happen.

So at some point, the woman is required in your scenario to opt-out, else the man can assume consent has been given. I'll ask again: *why* is it the woman's job to reject, and not the man's job to be sure of consent? Because...it's really awkward and that's not how things are done?

Again, as a society we once thought the same kind of way about asking about birth control and insisting on safe sex prior. Now, though, most say something like, "Be a grown up and make sure unless you want to risk trouble." Trouble being pregnancy or disease.

But *consent*? That's just too awkward and unreasonable to insist on? *Why?* "Because it is," or shades of that aren't an answer.

quote:
...but you best believe that my daughter would be getting a bunch more speeches about putting herself in harm's way.
What would the tone of those lectures be? "You should've said no," or, "Some men are bastards, so be careful!"
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Stone_Wolf_
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Rakeesh, I wasn't saying you all think that, just Kate, and here is why:

quote:
Originally posted by Stone_wolf_: katharina...so you have never ever ever had any sex without first giving explicit verbal consent, right? In or out of a relationship...ever...because if you ever didn't say "You have permission to have sex with me now." or equivalent, by your standards you turned your lover into a rapist.
quote:
Originally posted by katharina:
quote:
katharina...so you have never ever ever had any sex without first giving explicit verbal consent, right?
Right. This is absolutely, 100% correct.
So the example with my wife is based on my understanding of katharina's beliefs, and not a criticism of what "We're talking about", whoever "we" is.
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Stone_Wolf_
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quote:
Originally posted by katharina:
quote:
Making out and heavy petting at someone's house is not the same as a kiss.
So, it is the same thing as sex? Making out with someone is consent for sex?
Instead of trying to read into my words and twist them around to your needs, just go with what I've actually said, as I've said quite a bit on the subject.
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kmbboots
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Stone_WOlf, the history that I (and I believe kat) referred to is not from 3000 bc. It is from the 1970s. And those attitudes prevail even now.
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katharina
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quote:
Originally posted by Stone_Wolf_:
Rakeesh, I wasn't saying you all think that, just Kate, and here is why:

quote:
Originally posted by Stone_wolf_: katharina...so you have never ever ever had any sex without first giving explicit verbal consent, right? In or out of a relationship...ever...because if you ever didn't say "You have permission to have sex with me now." or equivalent, by your standards you turned your lover into a rapist.
quote:
Originally posted by katharina:
quote:
katharina...so you have never ever ever had any sex without first giving explicit verbal consent, right?
Right. This is absolutely, 100% correct.
So the example with my wife is based on my understanding of katharina's beliefs, and not a criticism of what "We're talking about", whoever "we" is.

*sigh* Don't be an idiot. You making assumptions about my private life that are both unwarranted and hilariously wrong. Stop making the argument personal - you don't know enough to do it well, and, well, I haven't volunteered personal information, so that isn't on the table.
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katharina
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Look at what Rakeesh said - you are saying that unless a woman opts out, then Bob is justified in assuming a "yes" if she makes out with him, even if by the time sex happens, she's so drunk she can't form completely sentence.

Do you see how that's a problem? If getting actual consent from Olivia is too embarrassing for Bob, then I suspect he is too immature to have sex at all.

Even if it is "not the way things go", Bob needs to get actual consent. ESPECIALLY if Olivia has been drinking. "She didn't stop me (fine, she wasn't even verbal)" is not enough.

The problem isn't the drinking. It's the assumption of consent when it hasn't been given, and if sex happens under those circumstances, you blame the woman. That's not original - that's an old, old sexist attitude, and it isn't okay.

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Stone_Wolf_
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That is it. I'm done with you Kate.

There was no assumption, it was a question. One you answered.

I've stated my beliefs, the reason behind them, where we agree and where we disagree. I've done my best to understand where everyone here is coming from and to explain the same for myself.

I've tried to answer each and every point brought up to me, but you do not do the same, you skip what I have to say and just ask a leading question which if it were honest would have already been answered. And then you say "Don't be an idiot."

We are done talking about this at this time.

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katharina
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SW, you asked me a very personal question and I answered it without giving details. It looks like you made some bad assumptions based on the oblique answer. I don't know you and I'm put off by your forgiveness of Bob in this scenario, which means I am not going to share personal details about myself or my beliefs beyond those of personal soveriegnty.

Don't make it personal. You're getting it wrong, and you don't have my permission to drag my own life into it.

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