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Thread: General Discussion and Information: Sexual Assault

  1. #1
    Bronze Member WaywardKiwi's Avatar
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    General Discussion and Information: Sexual Assault

    Hey enotalone,

    Sadly, the question 'Was this sexual assault?' is an all too frequent thread title across these boards. While I applaud the OPs in those cases for seeking guidance, those threads often invoke wide-ranging discussions on the topic of sexual assault general. This particular subject is one I feel strongly about, and I readily admit to being guilty of unintentionally hiijacking threads with my own analysis and opinion on the subject more generally. That said, I believe these ethical, moral and legal discussions on the topic are valuable and have a place on these forums. To that end, I have created this thread where those discussions can be posited without shifting focus from OPs who deserve to have their particular cases heard and discussed in their respective threads.

    My sincere hope is that this thread can provide a resource anyone who has questions regarding sexual assault, and encourage a more frank and open discussion on the topic. I have no illusion of changing the world, however if just one person is encouraged in their personal situation to seek help, or one would-be offender is educated as to the subject, I will be satisfied. I hope and encourage contributors to post resources such as support services, legal services or anything else that may be relevant. I have no moderator powers, however I would encourage contributors to steer clear of posting any specific advice to other users here, and use it more for general observation or advice.

    Lets see how we go,

    T

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    Bronze Member WaywardKiwi's Avatar
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    Discussion: removing a condom, without consent or knowledge of the other participant.

    I want to preface this with saying this is just my general opinion and I am by no means an infallible expert.

    Originally Posted by WaywardKiwi
    ... in Assange v Swedish Prosecution Authority [2011] EWHC 2849, the High Court in the UK did hold at [85] - [91], that removing a condom during sex where consent was predicated on the wearing of a condom did amount to an offence (sexual assault) under The Sexual Offences Act 2003 in the UK. That case was an extradition case, and I am not aware of any direct prosecution for this in the UK, however that is persuasive precedent in that jurisdiction. Furthermore, High Court decision in the UK are persuasive in all common-law jurisdictions, including the US, Canada, New Zealand and Australia.
    Originally Posted by Hollyj
    But, she continued sleeping with this guy after she knew he did it.
    I think the important aspect is that she did not know he did during that sexual encounter. Even if she did continue to have sex on future occasions, that particular time still constitutes a sexual assault, in the same way the spousal rape is not negated by future consensual sex.

    Originally Posted by SarahLancaster
    That's interesting. Would it also be considered sexual assault if the women lied about being on birth control and she got pregnant? A slippery slope, to be sure.
    It's difficult to say based on hypothetical fact scenarios, but my feeling is that case would be distinguished.

    In Assange v Swedish Prosecution Authority [2011] EWHC 2849, the court held that the wearing of a condom was intrinsic to the sexual act itself - i.e. the consent was given to protected sex, and when the sex was no longer protected it was no longer consented too. An analogous case might be where someone consents, but instructs not to engage in other sexual acts (such as digital anal stimulation). The consent is limited, and if the non-consented act occurs, it is sexual assault.

    In the case of birth control, this is extrinsic to the act. I really don't like the analogy, but, for example, it is not generally considered a sexual assault for an HIV positive person to lie about their status in order to gain consent. Of course, in that case there is grounds for other offences, such as reckless disregard for human life and, in some jurisdictions, specific offences relating to intentional or reckless transmission. However, as far as I am aware, no common law jurisdictions recognise pregnancy as injurious (for a number of reasons).

    Generally speaking, slippery slope arguments are amongst the weakest legally, as the Courts usually err on the conservative side when applying precedent to new fact scenarios.

    T

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    Platinum Member figureitout23's Avatar
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    Eh, in theory this is an excellent idea truthfully, but well... your motives for doing it just seems a need to push your opinion on others and be right.

    This isnít a general discussion, you are taking a womanís story and arguing whether or not your opinion is right on a completely different thread...

    Iíd personally be more offended than if a side discussion/argument happened within my thread. Thatís just me though...

    Maybe try to make it more general by taking out quotes from the womanís post and simply speaking on these general topics.

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    Originally Posted by figureitout23
    Eh, in theory this is an excellent idea truthfully, but well... your motives for doing it just seems a need to push your opinion on others and be right.

    This isnít a general discussion, you are taking a womanís story and arguing whether or not your opinion is right on a completely different thread...

    Iíd personally be more offended than if a side discussion/argument happened within my thread. Thatís just me though...

    Maybe try to make it more general by taking out quotes from the womanís post and simply speaking on these general topics.
    Yes, I agree -I don't find this a productive or helpful way to discuss the topic if the goal is to promote open discussion and support for those implicated by sexual assault.

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    Gold Member SarahLancaster's Avatar
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    I think it's a very important and timely topic to discuss here. And I don't think that Wayward should have her motives questioned. We're all here to "push" our own opinions.

    If a man can be accused of sexual assault when in the heat of the moment he pulls off his condom, then that's a topic that needs to be sorted out.

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    Bronze Member WaywardKiwi's Avatar
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    Hi again,

    Originally Posted by figureitout23
    Maybe try to make it more general by taking out quotes from the womanís post and simply speaking on these general topics.
    I apologise, I sincerely meant to discuss this generally and respond to the points raised by both Holly and Sarah, but I see I executed that poorly. To be honest, it was lazy quoting rather than reformulating to points in general terms. I purposely didn't mention the original thread, and edited out any reference to the OP, but I can see that wasn't really enough, especially given I linked to this thread there. I just wanted to respond to what I thought were relevant and interesting points and give my opinion, without leaving another long winded and ultimately irrelevant response on that thread.

    I do stand by the discussion of this topic. The discovery of the decision in the UK was actually surprising to me, as I thought it wouldn't raise to a criminal standard. Given that it appeared this was the general view, I thought it worth sharing this information. As I have said so many times, I know the system is imperfect, but I just believe that the way to change for the better is through those who report and push for prosecution. It is not an obligation on sexual assault survivors, of course. They have been through enough, and I have always said in my direct responses that it is ultimately their decision, despite my beliefs. However, in Law those big cases that change things all start with someone who pushed and fought and got the right decision finally. If someone in this situation sees this, and consequently learns that a Court somewhere was on their side, maybe that would be enough. I don't know, but the idealist in me still wants to say something.

    Originally Posted by figureitout23
    ... your motives for doing it just seems a need to push your opinion on others and be right.
    To be honest, I feel I generally welcome discussion and rarely 'push my opinion'. I stand by my opinion when I believe it to be correct, of course, but that is hardly unique to me here, and to be honest I feel I do it with far less antagonism than many other users. In this particular post, I was very clear that this is just my opinion, and that it is not infallible. As I said, i take your point about the method and execution. Hopefully, if this thread can continue and my original intention be realised, this can just be a cautionary tale to others in the future.

    Finally, and ironically, this entire thread was actually a result of the last time I commented on a thread related to sexual assault where you, figureitout, thoroughly chewed me out for being 'too gungho' and offering 'irrelevant' opinions. I'm not trying to start anything, I'm just trying to illustrate that I took that discussion and reflected on it, and tried to do something different this time. I understand you may not like me or my opinions, but I genuinely am trying to preserve the intergrity of the original threads while still having a forum for this wider discussions.

    Originally Posted by Batya33
    Yes, I agree -I don't find this a productive or helpful way to discuss the topic if the goal is to promote open discussion and support for those implicated by sexual assault.
    Thank you for your imput Batya. As I hope the above illustrates, contrary to some opinion, I am actually open to hearing how I can achieve what I set out in the introductory post. Is your objection to the idea generally, or just my initial execution?

    Originally Posted by SarahLancaster
    I think it's a very important and timely topic to discuss here. And I don't think that Wayward should have her motives questioned. We're all here to "push" our own opinions.
    Thank you Sarah. I'm glad you took my intial, somewhat clumsy, attempt at this, in the spirit in which it was intended. Also, its not a huge thing, but I am a he

    Thanks all,

    T

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    No objection to the general idea.

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    Originally Posted by WaywardKiwi
    Discussion: removing a condom, without consent or knowledge of the other participant.

    I want to preface this with saying this is just my general opinion and I am by no means an infallible expert.





    I think the important aspect is that she did not know he did during that sexual encounter. Even if she did continue to have sex on future occasions, that particular time still constitutes a sexual assault, in the same way the spousal rape is not negated by future consensual sex.



    It's difficult to say based on hypothetical fact scenarios, but my feeling is that case would be distinguished.

    In Assange v Swedish Prosecution Authority [2011] EWHC 2849, the court held that the wearing of a condom was intrinsic to the sexual act itself - i.e. the consent was given to protected sex, and when the sex was no longer protected it was no longer consented too. An analogous case might be where someone consents, but instructs not to engage in other sexual acts (such as digital anal stimulation). The consent is limited, and if the non-consented act occurs, it is sexual assault.

    In the case of birth control, this is extrinsic to the act. I really don't like the analogy, but, for example, it is not generally considered a sexual assault for an HIV positive person to lie about their status in order to gain consent. Of course, in that case there is grounds for other offences, such as reckless disregard for human life and, in some jurisdictions, specific offences relating to intentional or reckless transmission. However, as far as I am aware, no common law jurisdictions recognise pregnancy as injurious (for a number of reasons).

    Generally speaking, slippery slope arguments are amongst the weakest legally, as the Courts usually err on the conservative side when applying precedent to new fact scenarios.

    T
    She knew about it within a month of dating, yet continued to date him for two years. I do not understand after two years, why this is an issue. It should have been an issue then, and she should have dumped him.

    I do not consider it sexual assault, I simply consider him a sleaze bag.

    I do not understand why you felt the need to push your opinion, again. Do you have a need to always be right? I am asking this in sincerity.
    Last edited by Hollyj; 09-03-2019 at 11:32 AM.

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    Bronze Member WaywardKiwi's Avatar
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    Originally Posted by Hollyj
    She knew about it within a month of dating, yet continued to date him for two years.

    I do not consider it sexual assault, I simply consider him a sleaze bag.

    I do not understand why you felt the need to push your opinion, again. Do you have a need to always be right? I am asking this in sincerity.
    Hi Holly,

    Apologies, as you originally quoted my post, I thought you were responding to my post and offering a counter point, to which I then offered a counter point. I didn't realise you meant to respond to the original post and didn't want to continue the discussion.

    Again, I am a bit confused by this 'push my opinion' and 'always be right' stuff. Maybe the way I write my posts and communicate on this forum is coming off a certain way. I generally will offer my opinion once, and then post again if I do think of something else to add; in this case, when I saw many people categorically say it wasn't criminal, when I had found a case which said it was, I thought that was valuable, or at the very least interesting, information. When people quote me and ask questions or offer counter points, I generally view that as an invitation to discussion and an opportunity continue developing my opinion.

    I am also very liberal with the 'Just my opinions' and 'I take you points' - these are sincere. I generally believe in most matters on eNotalone, there is rarely a right answer, just various shades and opinions.

    Unfortunately, this thread has already been derailed by somehow becoming about me. It was never my intention, and I am genuinely disappointed, if not entirely surprised. For my part, I will reflect on how I communicate here, but maybe its best I request this thread be closed.

    Thank you,

    T
    Last edited by WaywardKiwi; 09-03-2019 at 11:54 AM.

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    Platinum Member Wiseman2's Avatar
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    Agree that a forum such as this could be a good place to discuss sexual/relationship matters in a safe open manner. However posters need to realize it's not a law enforcement agency or a court of law. In fact getting random opinions from all variety of people may do more harm than good. Particularly when the threads devolve in to flame wars about what it is and isn't. The best advice to such individuals is to consult a physician/clinic for a private confidential discussion about every specific detail as well as an appropriate exam. Those individuals who are merely looking to stir up these flame wars with "trigger alert" posts are merely looking for drama. The definition is a case by case basis and depends on too many factors.

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