Is removing a cover rape?

[Whispers]

Originally Posted by frenchlouie1986

Yes, because consent would be removed once the condom came off.

Where in my scenario did anyone consent to anything in a manner that would indicate consent has been removed?

I'm not sure how many people sit down before having sex to discuss exactly what they are going to do and how they are going to do it......

In real life I've seldom experienced it and I did not limit the original question to just hobby life...... But even here......I'm not sure how many times over the hundreds of sessions I've had that a Provider paused, produced a condom and said... your going to wear this OK? and I said OK.... Maybe 2 or 3?

If a guy is getting intimate and in the moment a lady produces a condom and then takes and installs it on him did he agree to it? Did she just assume it? If your argument is that in allowing it to be placed on him that he consented...... the follow up is If he removes it and she does not stop him doesn't she also "consent" to the removal? She's the professional right? She should no...

In the absence of a discussion and some sort of agreement I don't understand where hard definitions of consent can be established....

I've learned that rape is not the legal term for sexual assault and that removing a condom does not constitute sexual assault..... Thank-you ShysterJohn....

I've also learned that the right topic will bring a legal secretary from the closet to try to 1up the attorney....

[frenchlouie1986]

The removal of a condom does not automatically revoke consent if the other person has knowledge of it and continues. The problem arises when the other party has no knowledge of the condom removal and the removal was done without the other person's knowledge and they were not afforded an opportunity to provide consent. Condoms break or come off accidentally and it is not a sexual assault. Nobody said the unknowing or unintentional removal of a condom was a sexual assault; only situations which involve one party being unaware and the knowledgeable party knows the other would not consent to it and is unaware the sexual assault is occurring.

You implied consent and deception when you mentioned guys removing condoms during a sexual encounter through deception.

A girl putting a condom on a guy before sex and the guy continuing with the condom on implies consent through his continued action. But if he removes the condom without her knowledge and continues sex knowing she is unaware and would not continue if she had knowledge the condom was removed, it becomes sexual assault. But, if she knows the condom came off and continues sex then her consent is implied through her continued action.

Like I said earlier I never made any claims to who I was nor will I ever make any claims as to who I am on an internet discussion board, except this, I am not a legal secretary. People can be whoever they want on here and it would be a little foolish to try to make a judgement based upon individual claims or an ability to speak a good game. I am not trying to one up anybody I saw some information I think is wrong and I presented contradictory information to support my argument. If I really wanted to one up someone I would bring up the fact that Canada legal system is much like our own here in the United States and has a presumption of innocence which was a blatantly uneducated and false statement and produces doubt in anything offered as fact said by that person. If you want to remove your condom during sex without the other person's knowledge and consent go ahead, but do not be surprised if you are charged with sexual assault if the girl decides to take action against you.

[ShysterJon]

Louie's argument is nonsense. Under his (uniformed) view, if Betty Boop agreed to have sex with me as long as I wore a cock ring but I secretly took it off, that would be 'sexual assault.' Stupid beyond imagination.

The statute regards consent to engage in sexual conduct, not consent to wear a condom, a cock ring, a FrenchLouie tickler, or a sombrero.

[sketchball82]

@Frenchlouie:

The law is much the same here in Michigan (MCL 750.520) and in Virginia (Code § 18.2-61,-67.1) as to what ShysterJon has been trying to tell you. You are 100% wrong in this. Shyster is correct. Ironically, in Michigan, consent is not part of the test for criminal sexual assault, which clearly overcomes your argument (not that it had any weight before).

Consent is not extrapolated to rhetoric (i.e., would she give consent if she knew X). It's a simple test. Did she say "ok, fuck me?" or say "don't fuck me". Think about it: your logic implies that if any parameter of the situation changes during coitus without the partner's knowledge, she can ex post facto remove consent. Fuck I'll go beyond that and point out more generally that conditional consent would imply that no consent could exist in situations where your partner didn't approve of an unknown fact that existed for years before she met you that would have led her to the conclusion no consent. That leads to some ludicrous situations:

- She doesn't like downward doggie (doggie with face down ass up) but is okay with doggie. We were fucking doggie, but I was pushing her back hard, and her arms gave out, so she fell into downward doggie, to which she didn't consent, thereby making me a rapist.
- I raped her because I started to go limp whilst fucking her and told me to stop, but I thrusted one more time. Why didn't I take a viagra!
- I raped her because I was afraid I'd go limp, so I took a viagra. But she was only willing to fuck a guy that wasn't on viagra. Even though we didn't discuss it and she said we could fuck, she removed the consent after.
- I raped her because I couldn't get her off and she was only willing to have sex if I could get her off. I thought I could, but because I couldn't the sex we had wasn't consentual. Now I'm a fucking rapist.
- I raped her because I didn't tell her that I used to be married and she wouldn't have let me fuck her if she knew.
- I raped her because I accidentally used a "lifestyles" condom and she only consented to a "trojan" condom. Fuck why did I put on the wrong condom? Now I'm doing 10 years.

*EDIT: Well shit. I didn't notice Shyster's last post where he's also pointing out an equally absurd "rape" using similar logic to mine.

[ElumEno]

Here is a story that happened in the early 90's in Florida.

Basic story is like this...

Girl meets guy in bar and goes back to her place, on the way there they stop by gas station for condoms.

Have a great time and then pass out together... few hours later the guy wakes up horny and wants to go at it again,
But finds that they had used all the condoms in the three pack, but being horny, he starts up again with out it.

She wakes up and they have sex... with her completely awake and (seeming) enjoying it.
It was not until afterwards that she found out he was not wearing the condom and she goes crazy... she chases him out with a bat and calls the cops.

Jury gave him 12 years.

I am sure that there was more to the story but that is the gist of it.
Maybe one of the lawyer types with the correct resources can find out more.

Happened in New Port Richey, Florida (Pasco County) between '88 - '92.

[Macro]

Originally Posted by ShysterJon

if Betty Boop agreed to have sex with me as long as I wore a cock ring but I secretly took it off, that would be 'sexual assault.' Stupid beyond imagination.

Would that be fraud? Breach of contract? Theft of bbfservice?

[frenchlouie1986]

Actually, consent and penetration are all that matters when it comes to sexual assault which is all I am saying. According to the statute the encounter has to be non consensual and it has to involve the penetration of the mouth, genitals, or anus. I am not talking about case law or jury decisions because juries will decide how they choose often without any discernible reason and case law is reliant on someone's ability to locate, interpret, and create a persuasive argument about prior decisions; also case law changes over time to adapt to new situations and circumstances. It does not specify with what only that it be penetrated and it be done without consent. And, no the absurd, false analogies presented by other posters do not constitute rape because consent does not have to be explicit it can be implied by actions such as someone continuing an encounter after something has occurred in this case the condom coming off but only if she has knowledge of the change in situation. The situation presented for my reasoning is extremely narrow and deals with a singular situation involving a a condom intentionally coming off and the woman not have knowledge and therefore not being able to revoke or reaffirm her consent explicitly or implicitly.

Michigan uses the term coercion in place of consent for situations which do not use force but where the actor threatens the use of force and does not include a provision in which is similar to Texas code. While Virginia uses makes note of threatened use of force or intimidation as a way for someone to force penetration on another person. But we are talking about Texas law and not Michigan or Virginia law so again thank you for interjecting something completely irrelevant into the discussion and cherry picking two states that do not have provisions involving deception. Now how about the other 47 which really does not matter because we are talking about Texas and what is illegal under Texas law not sexual assault laws around the country.

How are you not able to discern the most fundamental elements of an offense or the actus reus of what must occur for an offense to be considered an offense? In this case there must be a situation of non consent and penetration. If one of those conditions occur then it is a sexual assault otherwise it is consensual sex. Under Texas law the intentional removing the condom without someone's knowledge and continuing the encounter without the other party's knowledge of the condom removal removes the element of consent and is a sexual assault. This does not include situations where the condom comes off or breaks or the condom removal is otherwise unintentional, unknown, reckless or with criminal negligence by the actor. Only when the actor intentionally knew the condom came off such as removing it and continuing the encounter to with the knowledge the victim had no awareness of the new situation.

Quit reading more into this than I have put out there. It is extremely narrow and applies to a narrow scope of situations. Also, quit getting so worked up over something posted on a discussion board that happens to disagree with your way of seeing the world. This is how I read the law it is my interpretation if you want to disagree with me fine. I really do not care. It is your life if you want to partake in questionable activities go ahead. I think we all do which is why we are here on this board, but stop with the stupid nonsense because your world view is challenged and you want to be king of the discussion board and pretend to be something you are not.

[omakase]

French - I get why this is so frustrating for you. You and Shyster are speaking two completely different languages. You're looking at the idea of "consent" by its ordinary English definition. Common sense says that agreeing to covered sex is not the same thing as agreeing to bareback sex. Anybody who's not a criminal lawyer will agree that a woman revokes (or should be allowed to revoke) her consent if the man takes off the condom without her knowledge.

But this is the problem.

Legal consent is not the same thing. "Consent" in Texas is about your capacity (mental or legal capability) to engage in activities. Was the girl underaged (this might be a different penal code)? Was the girl forced at gunpoint ("duress")? Was the girl mentally handicapped? Was the girl drunk? Consent in this context has absolutely nothing to do with actually agreeing to sex. Consent in this context is only about whether or not you could agree to sex.

I've not been able to find any legal scholarship or case law on point. It's possible that some laws may have changed to address scenarios discussed in this thread. In fact, there I saw some literature about "affirmative consent" reforms where it might be possible tor revoke consent at various stages of sexual engagement. But - for the purposes of this conversation - you might as well be speaking Arabic to Shyster.

[omakase]

HOT DAMN!!!!

Long answer short - You might want to be more careful in the following states: Alaska, California, Connecticut, Illinois, Kansas, Maine, Minnesota, and South Dakota. At least according to a 2004 law review article.

No Means No: Withdrawal of Consent during Intercourse and the Continuing Evolution of the Definition of Rape (2004)

http://scholarlycommons.law.northwes...8&context=jclc

The vast majority of states still adhere to the common law principle
that once consensual intercourse begins, a man cannot be prosecuted for
rape even if the woman withdraws her consent during the act." 8 Though a
handful of state supreme courts have recognized the defendant's disregard
of withdrawal of consent as a form of sexual assault, one should not
construe these examples to mean that the majority of states accept this
change." 9 Until it is overturned, by either court decision or statute, the
majority common-law rule remains in the forty-two states that have not yet
addressed the issue. In addition, a few state courts have heard the issue of
withdrawal of consent and reaffirmed the doctrine that a man cannot be
guilty of sexual assault once a woman gives her initial consent

[sketchball82]

EDIT: I thought better of this post because I was going to rip amateur hour (i.e., french) a new one. I had a super long post but I decided to delete it. I'm done with this thread.

EDIT 2: Okay: I was almost done with this thread. I do want to address amateur hour's cherypicking comment. I discussed Michigan law and Virginia law because I'm a member of their bars, but way to assume that I was cherypicking to make a point. I'm not a memeber of the Texas bar, so it seemed a logical starting point. Also Note that Whispers did not limit his question to Texas. Lastly note that my comment did explicitly address the term 'consent,' which is relevant to Texas law you fucking troglodyte. Watching law and order does not make you an attorney.

Ohh and amateur hour, please learn the definition of coercion. The fact that you think coercion and consent have similar scopes demonstrates you ineptitude in the law.

Done with this thread.

[frenchlouie1986]

Proclaiming to be an attorney on a discussion board does not make someone an attorney either. What is your point? I can claim to be whatever I want and if I say it enough and speak a somewhat knowledgeable game people may believe me. But, I have never made any claims to who I was with the exception of denying that I was a legal secretary earlier. I do not need to proclaim myself an attorney or declare of which states I am a member of their bar. None of that is important because this is an internet discussion board where people can be whoever they want to be that day.

You can attack my credibility all you want and say I am an amateur, ignorant of the law, or whatever your mind can come up with all you want; the simple fact is you cannot prove any of the claims you make. I really wish you would have torn me a new one; I think that would have been funny. And yes, I used cherry picking because that is how the argument read to me. To me you chose two examples out of a larger group which proved your point and neglected the rest when I have clearly stated this was about Texas law. This whole discussion has been nothing but deflections and fallacies used by both sides to try to win an argument on an internet discussion board.

And, I never said they had similar scopes I said that Michigan used coercion as a definition of what was not consent. I think my exact words were in place of consent for situations which do not use force but where the actor threatens the use of force. This is not the same as saying consent and coercion are similar concepts. Again another example of someone implying something incorrectly from what I said.

Coercion is threatened use of force, intimidation, or other pressure to compel a person to do something against their will. I am sure my wording is not exactly as it would be in a legal dictionary, but I am not to concern with knowing the verbatim definition only that I can correctly use the term. If you want to be pedantic about it I will grab Black Law dictionary and copy the definition of coercion verbatim, let me know, but it will only prove that i have access to the dictionary and should not be used to imply who I am.

This is my response to the 42 states who followed old common law as of 2004 that was eleven years ago which is a lifetime in today's society and while significant case law has stood the test of time it is constantly evolving to adapt to new situations. And I do not care what the other courts have said because the original poster asked if the condom coming off during sex was sexual assault and presented some hypothetical scenarios, so I presented a situation in which under a state's statutory law the removal of a condom during sex was considered sexual assault. I never said it would withstand scrutiny from higher courts or would not be overturned on appeal; I only said that according to statute as applied to a specific situation it would be sexual assault. The answer did not involve every situation nor did I imply that it applied to every situation; I only applied it to one very specific example of when it would be considered a sexual assault. And, what do you know all the internet lawyers and discussion board attorneys (myself included because like I have said constantly I will not make a claim to who I am and anybody can be whoever they want to be on the internet) came out to voice their opinion.

One last thing, please do not try to over think or imply anything from my statements there are no hidden meanings or interpretations. I have tried to say everything as explicitly as possible, but it still seems as if people are making generalizations that are based on information that I have not expressly stated. I will say this one more time there are no hidden meanings behind my words. Everything I have stated is applicable to one situation and one situation only. And that situation is the intentional removal of a condom during a sexual encounter without the knowledge and consent of the other party and how under the Texas Penal code 22.011 b (5) that constitutes sexual assault. It applies to no other situations, circumstances, bodies of law, or geographic locations.

So, thanks everyone for the thought experiment; it is fun to see how other people reason and I have found your participation extremely rewarding and enjoyable. I hope to have another one soon. If your feelings were hurt during all this or you felt like your internet legal knowledge supremacy was challenged, well that is your problem this is the internet and people can be whoever they want to be on the internet. If you get this far please do not respond to this reply there is nothing more to be said on this subject; it is a debate which has gotten out of hand with all the fallacies, faulty generalizations, and red herrings.

[The Eternal Bachelor]

Originally Posted by ShysterJon

frenchlouie1986: I don't agree with your reading of Texas Penal Code 22.011(b)(5), which states "A sexual assault under Subsection (a)(1) is without the consent of the other person if ... the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring." Consent relates to the acts set forth in the statute under 22.011(a)(1), and there's no mention of condoms in 22.011(a)(1). Penal statutes are construed narrowly, and had the state legislature meant that sexual assault includes sex without a condom, the statute would say that. It doesn't. Section 22.011(b)(5) relates to situations where the complaining witness is incapacitated with, for example, alcohol or drugs.

The argument that having sex with an HIV-positive sexual partner or a sexual partner with AIDS could be sexual assault is similar to the no-condom argument because both involve danger secondary to the conduct listed in 22.011(a)(1). But, as I noted before, those cases are prosecuted as assault with a deadly weapon, not sexual assault. However, an uncovered, ejaculating penis isn't a 'deadly weapon.'

Further proof? Cite ONE TEXAS APPELLATE OPINION where a court upheld a conviction for sexual assault because the defendant didn't wear a condom. I've looked, and I couldn't find one.

ShysterJon, can you comment on this recent military decision and how it might apply to Texas criminal or civil cases, or even to Whisper's hypothetical case?

http://www.robertscottbell.com/gover...iv-conviction/

WASHINGTON, D.C./EWORLDWIRE/Feb 26, 2015 — Office of Science and Medical Justice (OMSJ) confirms that, in its unanimous decision, the Court of Appeals for the Armed Forces (CAAF) ruled the evidence used to convict Air Force Sgt. David Gutierrez of aggravated assault was “legally insufficient.”

[algrace]

Correct me if I'm wrong, but doesn't the same injustice reside in the example of the surprise creampie while engaged in bareback?

Morally wrong? Yes. Prosecutable? Maybe. More civil than criminal? Almost certainly.

[ShysterJon]

I'm glad somebody bumped this thread because I forgot to answer Bachelor's question about the U.S. Air Force case.

I think the case can be analogized to the topic of this thread because it's highly unlikely a woman would become pregnant from a single act of condomless sex, just as the evidence was insufficient in the Air Force case that there'd be a likely injury from having sex with an HIV-positive partner.

The relevant part of the Texas statute regarding aggravated sexual assault requires proof that "death [or] serious bodily injury ... will be imminently inflicted on any person," which is similar to the military statute.

The Texas aggravated sexual assault statute -- Texas Penal Code section 22.021 -- is VERY specific about the types of conduct that may constitute the offense -- supporting my argument that had the legislature wanted condomless sex to be a crime, they would have so stated in a statute.

[frenchlouie1986]

I am not trying to beat a dead horse here, but Texas law establishes two elements to the offenses of aggravated sexual assault and sexual assault. Well, it could be three elements if you count culpability as one element, but for purposes here we will not worry about the culpable mental state required and only focus on the acts of aggravated sexual assault and sexual assault. But just in case for an aggravated sexual assault or sexual assault to occur the actor must act either intentionally or knowingly, so all the people who walk around out there with their dicks out are safe when they accidentally trip and fall into a naked girls vagina.

One element is consent which has been discussed ad nauseam, so I am not discussing it anymore. As we have already seen discussions about the nature of consent and its application during sex and what constitutes it results in ridiculousness because everyone has there own opinions on consent when it comes to sex. Besides, there are certain risks people accept when they have sex and the intentional removal of a condom with out the other person's knowledge is one of those risks. Condomless sex will never be a crime as long as it is consensual.

The other element is penetration which the law does not specify what the object doing the penetrating must be, only that the anus or sexual organ must be penetrated by any means. Now the law does specify that the mouth must be penetrated by a sexual organ for a sexual assault to occur, but it does not specify anything about condoms only a sexual organ. But with or without a condom the mouth is still being penetrated by a penis. But the mouth is not primarily a sexual organ and penetration of it may occur during assaults that are not sexual in nature, so the law must be specific here otherwise people could be convicted a sexual assault for any kind contact which penetrated the mouth of the victim. The anus is not primarily a sexual organ either, but the courts have determined the non consensual penetration of the anus a sexual assault. But that is beside the point.

For a sexual assault, this goes for aggravated sexual assault too because the only difference between sexual assault and aggravated sexual assault are aggravating factors, to conviction to be proper it must be determined that the anus, mouth, or sexual organ was penetrated and with the exception of the mouth, the object used to penetrate is irrelevant; it could be anything or by any means. The courts have determined the only elements which must be proven for a sexual assault conviction to be proper are consent and penetration which is why convictions were proper in cases in which the actor used an object other than a sexual organ to penetrate the victim. If the courts had determined the object used to penetrate the sexual organ or anus was an element of the offense then the law would have named specific objects.

I would say something about the last provision requiring a sexual organ, but that is for cases of sexual assault on a male and I do not know too many men complaining about being sexually assaulted.

Sec. 22.011. SEXUAL ASSAULT. (a) A person commits an offense if the person:
(1) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of another person by any means, without that person's consent;
(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or
(C) causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or

Sec. 22.021. AGGRAVATED SEXUAL ASSAULT. (a) A person commits an offense:
(1) if the person:
(A) intentionally or knowingly:
(i) causes the penetration of the anus or sexual organ of another person by any means, without that person's consent;
(ii) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or
(iii) causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

To answer the question presented about the Air Force case. The decision by the Court of Appeals for the Armed Forces to overturn the conviction will have no effect on any Texas court decision directly. The only way for the decision to have an effect on Texas court decisions is indirectly because military courts do not hold mandatory authority (the authority to set precedent) over state or even federal courts for which the converse is also true, federal and civilian courts do not hold mandatory authority over military courts to include SCOTUS. In order for it to have any effect on Texas law the court deciding an applicable case would have to be familiar with that decision and decide whether the CAAF decision was in accordance with prior Texas court decisions, but there is no binding precedent established by the CAAF decision that a Texas court must follow.

I agree that there is no risk of imminent death or serious bodily injury because their are effective treatments for both pregnancy and HIV which eventhough there is a risk for both the chances are pretty low and neither are imminent in nature.

Posted by someone from the Internet. This is never to be taken as legal advice. Only take legal advice from someone in the real world.