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What is Rape? - Page 2

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peidongyang
Profile Joined January 2009
Canada2084 Posts
August 23 2012 07:29 GMT
#21
are we talking about legitament or illegitamte rape?
the throws never bothered me anyway
sunprince
Profile Joined January 2011
United States2258 Posts
Last Edited: 2012-08-23 07:52:53
August 23 2012 07:45 GMT
#22
On August 23 2012 15:34 NovaTheFeared wrote:
Show nested quote +
On August 23 2012 15:28 Atheist wrote:
On August 23 2012 15:23 IceThorN wrote:
Rape should be this: Forced vaginal intercourse or a comparable sexual act, which is carried out by assault or threat of violence.

If it don't specificly say "Forced" then any golddigger will be able to go in a bar, pick up a man or two, and then call it rape sometime later to get money, to have fun or just to settle an argument.

Men have been on the rough end of the dating game since forever. Please don't make it worse ;(

Rape has always been pro-women/victim, since most victims are women. In most states, if not all, rape does not even require witnesses or circumstancial evidence to go to court. All it needs to prosper is the victim filing charges. Though in some states, TX and NO (iirc, I might be wrong), rape punishments can be mitigated (made lesser) if in the act of intercourse it is proven that the victim/woman enjoyed it, or something like that. I have no idea how they'd prove it though.


This might not be true in the United States. More men are raped annually than women here according to the Justice Department numbers. The reason is we incarcerate an insane amount of people and prison rape occurs at a higher rate than in the general population.


And even if you disregard prison rape, the numbers are closer than most people think (even if, to avoid flak from feminists, the CDC chooses not to call male rape what it is): http://i.minus.com/ibdWhAGbVpHg9Z.png

On August 23 2012 16:05 JustPassingBy wrote:
I prefer Sweden's definition, however I do not see how Assange could be sued for that, he neither forced them nor threatened them.

edit: On second thought, the mentioning of "threat" might be redundant, since if you threaten somebody into doing something, you force them into doing it.


The Swedish definition of rape was expanded in 2005 to include any sex that includes a sleeping/unconscious woman. Aside from the fact that it's blatantly sexist in its failure to cover men, it also ignores the possibility that a woman may give explicit or implied consent to have sex with her when she is sleeping/unconscious. Thanks feminists!

On August 23 2012 16:29 peidongyang wrote:
are we talking about legitament or illegitamte rape?


Begging the question. Your definition of rape determines what is "legitimate" or "illegitimate".
dynwar7
Profile Joined May 2011
1983 Posts
August 23 2012 07:49 GMT
#23
What is rape?

Seriously? Everyone knows, no need to make this so complicated, let alone make a thread about it ............

Now allow me to ask. What is jump?
Regarding the imbalance, hilarious to see Zergs defending themselves....
GT350
Profile Joined May 2012
United States270 Posts
August 23 2012 07:50 GMT
#24
On August 23 2012 16:45 sunprince wrote:
Show nested quote +
On August 23 2012 15:34 NovaTheFeared wrote:
On August 23 2012 15:28 Atheist wrote:
On August 23 2012 15:23 IceThorN wrote:
Rape should be this: Forced vaginal intercourse or a comparable sexual act, which is carried out by assault or threat of violence.

If it don't specificly say "Forced" then any golddigger will be able to go in a bar, pick up a man or two, and then call it rape sometime later to get money, to have fun or just to settle an argument.

Men have been on the rough end of the dating game since forever. Please don't make it worse ;(

Rape has always been pro-women/victim, since most victims are women. In most states, if not all, rape does not even require witnesses or circumstancial evidence to go to court. All it needs to prosper is the victim filing charges. Though in some states, TX and NO (iirc, I might be wrong), rape punishments can be mitigated (made lesser) if in the act of intercourse it is proven that the victim/woman enjoyed it, or something like that. I have no idea how they'd prove it though.


This might not be true in the United States. More men are raped annually than women here according to the Justice Department numbers. The reason is we incarcerate an insane amount of people and prison rape occurs at a higher rate than in the general population.


And even if you disregard prison rape, the numbers are closer than most people think (even if, to avoid flak from feminists, the CDC chooses not to call male rape what it is): http://i.minus.com/ibdWhAGbVpHg9Z.png

Show nested quote +
On August 23 2012 16:05 JustPassingBy wrote:
I prefer Sweden's definition, however I do not see how Assange could be sued for that, he neither forced them nor threatened them.

edit: On second thought, the mentioning of "threat" might be redundant, since if you threaten somebody into doing something, you force them into doing it.


The Swedish definition of rape was expanded in 2005 to include any sex that includes a sleeping/unconscious woman. Aside from the fact that it's blatantly sexist in its failure to cover men, it also ignores the possibility that a woman may give explicit or implied consent to have sex with her when she is sleeping/unconscious. Thanks feminists!

Show nested quote +
On August 23 2012 16:29 peidongyang wrote:
are we talking about legitament or illegitamte rape?


Begging the question. Your definition rape determines what is "legitimate" or "illegitimate".

He was quoting Todd Akin
sunprince
Profile Joined January 2011
United States2258 Posts
Last Edited: 2012-08-23 07:53:48
August 23 2012 07:53 GMT
#25
On August 23 2012 16:50 GT350 wrote:
Show nested quote +
On August 23 2012 16:45 sunprince wrote:
On August 23 2012 15:34 NovaTheFeared wrote:
On August 23 2012 15:28 Atheist wrote:
On August 23 2012 15:23 IceThorN wrote:
Rape should be this: Forced vaginal intercourse or a comparable sexual act, which is carried out by assault or threat of violence.

If it don't specificly say "Forced" then any golddigger will be able to go in a bar, pick up a man or two, and then call it rape sometime later to get money, to have fun or just to settle an argument.

Men have been on the rough end of the dating game since forever. Please don't make it worse ;(

Rape has always been pro-women/victim, since most victims are women. In most states, if not all, rape does not even require witnesses or circumstancial evidence to go to court. All it needs to prosper is the victim filing charges. Though in some states, TX and NO (iirc, I might be wrong), rape punishments can be mitigated (made lesser) if in the act of intercourse it is proven that the victim/woman enjoyed it, or something like that. I have no idea how they'd prove it though.


This might not be true in the United States. More men are raped annually than women here according to the Justice Department numbers. The reason is we incarcerate an insane amount of people and prison rape occurs at a higher rate than in the general population.


And even if you disregard prison rape, the numbers are closer than most people think (even if, to avoid flak from feminists, the CDC chooses not to call male rape what it is): http://i.minus.com/ibdWhAGbVpHg9Z.png

On August 23 2012 16:05 JustPassingBy wrote:
I prefer Sweden's definition, however I do not see how Assange could be sued for that, he neither forced them nor threatened them.

edit: On second thought, the mentioning of "threat" might be redundant, since if you threaten somebody into doing something, you force them into doing it.


The Swedish definition of rape was expanded in 2005 to include any sex that includes a sleeping/unconscious woman. Aside from the fact that it's blatantly sexist in its failure to cover men, it also ignores the possibility that a woman may give explicit or implied consent to have sex with her when she is sleeping/unconscious. Thanks feminists!

On August 23 2012 16:29 peidongyang wrote:
are we talking about legitament or illegitamte rape?


Begging the question. Your definition rape determines what is "legitimate" or "illegitimate".

He was quoting Todd Akin


Went right over my head, lol. Silly me for forgetting about that moronic excuse for a politician.
Ludwigvan
Profile Blog Joined April 2010
Germany2371 Posts
Last Edited: 2012-08-23 08:01:57
August 23 2012 07:57 GMT
#26
The definition of rape comes from your own ethics (or should make sense according to your ethics). Everybody has a different ethics. So, in the best case of democracy, the legal definition should be some kind of consensus of the citizens ethical opinion.

Jimmy Carr gives the advice for younger men:
if you are gonna have sex with someone you don't know...

HawaiianPig
Profile Blog Joined July 2008
Canada5155 Posts
Last Edited: 2012-08-23 08:03:55
August 23 2012 07:57 GMT
#27
On August 23 2012 16:06 Zahir wrote:
Show nested quote +
On August 23 2012 15:51 HawaiianPig wrote:
In Canada, the crime of rape has been abolished and replaced with the crime of "Sexual assault" (sections 271-273 of the Criminal Code).

This was done in 1983, because parliament wanted to convey that sexual assault was a crime of violence as opposed to a crime of sex and thought this was a better way to describe it. In this same reform, a lot of sexist provisions (such as spousal immunity) were abolished.

The actus reus of sexual assault has three elements: (i) intentional touching that is of a (ii) sexual nature done (iii) without consent.

Intentional
in this context refers to "general intent" which refers to voluntariness and capacity. This is a requirement of practically all crimes. (...and is often the basis of insanity/intoxication defences. For reference, section 33.1 states that self induced intoxication is no defence).

Of a sexual nature is determined by the courts using a "totality of the circumstances" approach. It must be kept in mind that sexual assault is a crime of violence and not sex. Thus, sexual gratification is not required. Instead, the focus is on the sexual integrity and autonomy of the complainant. All of this is judged on an objective standard; the question is whether or not a reasonable person, as determined by the courts, would see the touching as sexual in nature.

The third element, without consent, is defined very precisely by the Canadian Criminal Code (273.1(1)). Consent is subjective, meaning the court must establish what was the internal state of mind of the complainant when the touching occured. Consent must be coninuous and apparent. You cannot consent in advance. Thus, in Canada, you cannot consent to anything while unconscious. Additionally, consent cannot be obtained through fraud/misrepresentation (i.e. lying about STDs).

The mens rea (fault requirement) involves the knowledge or willful blindness of the lack of consent of the complainant or recklessness in ascertaining that consent.


There you go.


Problem with this definition of consent is that according to it, I've been raped by my girlfriend several times. Since I can't give consent in advance, whenever she wakes me up in a sexual fashion, my unconscious, non consenting self has been raped. If I wanted to get back at her for some unrelated slight, I could press charges.


Yes, by the textbook definition, you have been raped.

This dilemma is known as the "sleeping kiss"

The court considered this in R v JA

The dissent in R. v. J.A. was primarily about this one point. Why can’t one consent in advance? Why should the law presume that consent is automatically revoked upon losing consciousness, even when that consent is given in clear contemplation of a future unconscious state? If your spouse asks for a kiss -- or more -- before you leave for work in the morning, even if he or she’s asleep, whose rights or interests are served by making that kiss into a criminal act?

The Crown offered two safeguards against the spectre of prosecution for such benign acts. Sure, it might be technically sexual assault if you kiss your sleeping spouse, but no reasonable prosecutor would attempt to charge anyone under such circumstances, and in any event, de minimus non curat lex: The law does not concern itself with trifling matters. The minority was unsatisfied with these safeguards, and for good reason: prosecutors are not always reasonable, and allegations of sexual assault should never be consider trifling.

While I am sympathetic to the minority dissent in this case, I am less worried about being prosecuted for kissing my sleeping wife, because of another practical safeguard. In order for a crime to be prosecuted, it must somehow come to the attention of the authorities, and in most cases this means a complaint by the victim. Although at law, the Supreme Court has declared that it is impossible to give consent in advance to sexual contact, in practice it is possible to give retroactive consent, simply by declining to report the offence.


Ultimately, it is necessary, and more important to the law to define consent in this way (i.e. must be constant and capable of being revoked at any time) because the manner of case that reaches the court is more likely to be sexual assault than a kiss in the morning.

In the case that was at the Supreme Court where this was decided, the consenting partners had engaged in asphyxiation play, and while one partner was unconscious, the other began inserting a dildo into the other's anus. Something they would have not consented to. It's a far cry from a morning kiss... or fondle.
AdministratorNot actually Hawaiian.
altered
Profile Joined March 2008
Switzerland646 Posts
August 23 2012 07:58 GMT
#28
What is rape?...Baby dont hurt me, dont hurt me...no more.

User was warned for this post
Does Flash dream of electric Romeo?
xmungam
Profile Joined July 2012
United States1050 Posts
August 23 2012 08:09 GMT
#29
Honestly this OP isn't very good, and doesn't provide for much discussion. the only thing he puts forward is "what is the legal definition of rape" so we are using all of these fancy words to describe something legally... but does that really matter?

here we are a bunch of white nerds on the internet... and we are talking about rape. first off we should acknowledge the inherent bias that is gonna be here.

second this is a really touchy and dumb subject almost.

i define rape as in a sexual penetration of someones personal sexual bubble. AS ridiculous as it seems. i actually don't even know what to say ... this thread is awful o-o
youtube.com/xmungam ~~ twitch.tv/thenessman
FabledIntegral
Profile Blog Joined November 2008
United States9232 Posts
Last Edited: 2012-08-23 08:13:59
August 23 2012 08:10 GMT
#30
On August 23 2012 16:00 IceThorN wrote:
We could make a good analog out of this. If i BBQ a boar in africa, and i promis this obviously starved individual some of it, and then deny it when it's finally done, most people would say that it's my own fault if he just steals it.
Same thing goes for sex. It's a deep drive in men, it's way stronger than any drug. How can it be his fault, if the woman does some shit like that then?


Are you serious? I have been stopped on two separate occasions by women on what would have been a one-night stand, just before we are about to have sex, because of the "I can't do this, this isn't me" reason. I have a few friends where it's happened to them too. None of them have forced themselves on a girl. Admittedly one of the times I was quite annoyed and subsequently got up and just left when she was trying to get me to stay the night anyways but not have sex, I still left instead. It's a choice.

I have also stopped midsex no fucking problem when my ex said that it for some reason spontaneously started hurting. Completely unbelievable you can say it wouldn't be the man's fault. In fact, I'd place 100% of the blame on the man.
zalz
Profile Blog Joined February 2011
Netherlands3704 Posts
Last Edited: 2012-08-23 08:12:41
August 23 2012 08:11 GMT
#31
On August 23 2012 16:00 IceThorN wrote:
How the hell would the man no such a thing? Men can't read womans mind you know. If she don't communicate with her partner, how is he to be blamed for anything?


It isn't about knowing, it is about intent.

If the man is giving off obvious signals that things will go bad if she says no, then it is still rape. Implied threat can be just as powerful as actual threat.


Again, how is the man to blame for this? Men are genetically engineered to mate as many times as possible in his lifespan. If a woman, drunk or not) is pressing on for sex, then it's equally as hard to say no to it, as it is for a starved 3rd world person to say no to a BBQ.
Also if the woman is drunk, then chances are that the male is also drunk.


No, it isn't. Anyone with an IQ higher than 30 and a basic degree of self-control can keep himself from raping someone.

I wasn't talking about a girl having had two drinks either, but when someone is obviously completely out there, I think it is obvious that they cannot give consent.

AFAIK, in 90% of relationship problems is blamed on the man.


Ooh cry me a river. You have anything to actually back that up? Or did a marathon session of gossip girl depart that wisdom unto you?

We could make a good analog out of this. If i BBQ a boar in africa, and i promis this obviously starved individual some of it, and then deny it when it's finally done, most people would say that it's my own fault if he just steals it.
Same thing goes for sex. It's a deep drive in men, it's way stronger than any drug. How can it be his fault, if the woman does some shit like that then?


In this analogy, the raping man is the starving human male, and the woman is the swine right?

At which point does a women cease to be a person with the right to their own body? At which point do your urges supercede their right to self-determination?

Frankly, at which point can you rape them? Because apparantly if a girl climbs into your bed naked, but doesn't want to have sex, you consider it fair game.

Stop pretending like it is some urge that you cannot resist. I would never violate another individuals personhood. If a woman says no, it is no.


Another person is not your property, to be used to fullfill your urges.
Ludwigvan
Profile Blog Joined April 2010
Germany2371 Posts
August 23 2012 08:21 GMT
#32
Yes, the BBQ analogy doesn't go far enough. Of course humans are animals and act to instincts and emotions. But we have to protect the victims and therefore overcome the unreasonable behavior.

Natural doesn't equal good!

Good and bad, ethics and moral should as much as possible come from reason and empathy.
ShadeR
Profile Blog Joined December 2009
Australia7535 Posts
August 23 2012 08:25 GMT
#33
What are the specifics regarding the case against Assange? I've heard several things. one of the girls was apparently under the impression that he was using a condom when he was not = rape. The other was having sex with him, feel asleep, then woke up to him still having sex with her? = rape.
FabledIntegral
Profile Blog Joined November 2008
United States9232 Posts
Last Edited: 2012-08-23 08:29:39
August 23 2012 08:26 GMT
#34
On August 23 2012 17:21 Ludwigvan wrote:
Yes, the BBQ analogy doesn't go far enough. Of course humans are animals and act to instincts and emotions. But we have to protect the victims and therefore overcome the unreasonable behavior.

Natural doesn't equal good!

Good and bad, ethics and moral should as much as possible come from reason and empathy.


Indeed. To insinuate that stealing food for survival is even remotely equivalent to satisfying one's sexual urges is utterly ridiculous. I wouldn't buy it in a second. If I ever heard that argument in court, I would convict the defendant so fast, most likely regardless of other circumstances.


On August 23 2012 17:25 ShadeR wrote:
What are the specifics regarding the case against Assange? I've heard several things. one of the girls was apparently under the impression that he was using a condom when he was not = rape. The other was having sex with him, feel asleep, then woke up to him still having sex with her? = rape.


I've always wondered if that was rape. I have a friend (male) who was having sex with a friend of mine (female), and it was consensual.

Except for the fact she told him to use a condom since she wasn't on BC. He wanted to bust, he couldn't with a condom on, so he took it off without telling her. Well, and the dumbass busted his load inside her, which pissed her off, but she just went and used the morning after pill. I wonder what the legality of a situation like that is. You're being deceived, but at no point during the sex do you ever want it to stop - rather it's afterwards that you find out and are potentially upset about the outcome.
leveller
Profile Blog Joined April 2010
Sweden1840 Posts
August 23 2012 08:32 GMT
#35
On August 23 2012 16:00 IceThorN wrote:
Show nested quote +
On August 23 2012 15:29 zalz wrote:


Rape as such isn't just physical force. If a women doesn't feel safe and feels like she can't say no, that might still be a form of force.


How the hell would the man no such a thing? Men can't read womans mind you know. If she don't communicate with her partner, how is he to be blamed for anything?

Show nested quote +

I think if a women is exceptionally intoxicated, it might also consitute rape, because she can't in all seriousness make any real choices.


Again, how is the man to blame for this? Men are genetically engineered to mate as many times as possible in his lifespan. If a woman, drunk or not) is pressing on for sex, then it's equally as hard to say no to it, as it is for a starved 3rd world person to say no to a BBQ.
Also if the woman is drunk, then chances are that the male is also drunk.

As for a universal definition of rape, that won't work. For example, in a lot of countries it is impossible for a man to rape his wife, simply because the culture states that sex is a man's priviledge in marriage, and he can force it from the women if he wants it.

Show nested quote +

A big problem though is that it doesn't take long before public opinion turns to blame a women. They once polled people to ask when something was still a rape in their eyes.


AFAIK, in 90% of relationship problems is blamed on the man.

Show nested quote +

Being phyiscally forced was obviously a rape in the eyes of nearly everyone, but if a women gets naked, climbs into your bed, and then suddenly says she doesn't want to have sex, is it still a rape? Of course it is (imo anyway), but the majority of people seem to disagree on that notion.


We could make a good analog out of this. If i BBQ a boar in africa, and i promis this obviously starved individual some of it, and then deny it when it's finally done, most people would say that it's my own fault if he just steals it.
Same thing goes for sex. It's a deep drive in men, it's way stronger than any drug. How can it be his fault, if the woman does some shit like that then?






That is a terrible and disgusting analogy. Sex is not a right. You don't deserve it just because you want it, which is basically what you are saying. If a woman agrees to sex but later says no because she changed her mind, THATS HER GOD DAMN FUCKING right, and if you think otherwise I advise you see the nearest police station or mental hospital. Seriously, if you can confess to having such low self control then I mean it.
It is rape simply if someone is made to have sex against their will. No bruises, no rape you say? Bullshit. There are so many situations where the victim (yes, the person who was RAPED IS THE VICTIM, not the fucking rapist) could have been pressured, threathened, drugged or other situations.

If someone has been robbed, is the first question you ask, "why didn't you fight back"? If someone comes up to me with a gun and asks for my money I will give it to him. Just as most people would rather be raped than killed. That doesn't mean it wasn't rape.

Now I agree, it is not NICE for women to tease and then not let you have sex with them, yeah it's tough. But it does not fucking give you the right to have sex with her if she doesn't want to.
zalz
Profile Blog Joined February 2011
Netherlands3704 Posts
August 23 2012 08:35 GMT
#36
On August 23 2012 17:26 FabledIntegral wrote:
I've always wondered if that was rape. I have a friend (male) who was having sex with a friend of mine (female), and it was consensual.

Except for the fact she told him to use a condom since she wasn't on BC. He wanted to bust, he couldn't with a condom on, so he took it off without telling her. Well, and the dumbass busted his load inside her, which pissed her off, but she just went and used the morning after pill. I wonder what the legality of a situation like that is. You're being deceived, but at no point during the sex do you ever want it to stop - rather it's afterwards that you find out and are potentially upset about the outcome.


Rape sounds a little extreme for that situation, but I do think there should be some form of punishment.

In general, such cases would probably just be dealt with between the parties involved.

Still, in this case there wasn't much of a problem, but I could think of a few scenarios where there would be a big shitstorm as a result. In a way, you are being deceived into doing something you wouldn't do if you knew all the facts.
HawaiianPig
Profile Blog Joined July 2008
Canada5155 Posts
Last Edited: 2012-08-23 08:43:06
August 23 2012 08:41 GMT
#37
On August 23 2012 17:35 zalz wrote:
Show nested quote +
On August 23 2012 17:26 FabledIntegral wrote:
I've always wondered if that was rape. I have a friend (male) who was having sex with a friend of mine (female), and it was consensual.

Except for the fact she told him to use a condom since she wasn't on BC. He wanted to bust, he couldn't with a condom on, so he took it off without telling her. Well, and the dumbass busted his load inside her, which pissed her off, but she just went and used the morning after pill. I wonder what the legality of a situation like that is. You're being deceived, but at no point during the sex do you ever want it to stop - rather it's afterwards that you find out and are potentially upset about the outcome.


Rape sounds a little extreme for that situation, but I do think there should be some form of punishment.

In general, such cases would probably just be dealt with between the parties involved.

Still, in this case there wasn't much of a problem, but I could think of a few scenarios where there would be a big shitstorm as a result. In a way, you are being deceived into doing something you wouldn't do if you knew all the facts.


In Canada, this is rape sexual assault, as consent was obtained under fraudulent circumstances. She would have never consented to sex without a condom (and indeed expressed this). She was led to believe that he was wearing one at all times. This is called "vitiating apparent consent".

http://en.wikipedia.org/wiki/R._v._Cuerrier

In this case, a man with HIV did not disclose his HIV status. The women would not have consented otherwise. (The case was tough to decide, however, because it was unclear as to whether or not the women actually contracted the HIV from him or potentially others).
AdministratorNot actually Hawaiian.
RageBot
Profile Joined November 2010
Israel1530 Posts
August 23 2012 08:55 GMT
#38
On August 23 2012 15:23 IceThorN wrote:
Rape should be this: Forced vaginal intercourse or a comparable sexual act, which is carried out by assault or threat of violence.

If it don't specificly say "Forced" then any golddigger will be able to go in a bar, pick up a man or two, and then call it rape sometime later to get money, to have fun or just to settle an argument.

Men have been on the rough end of the dating game since forever. Please don't make it worse ;(


Tough life, in a lot of places they already can do that.
Zahir
Profile Joined March 2012
United States947 Posts
August 23 2012 08:59 GMT
#39
On August 23 2012 16:57 HawaiianPig wrote:
Show nested quote +
On August 23 2012 16:06 Zahir wrote:
On August 23 2012 15:51 HawaiianPig wrote:
In Canada, the crime of rape has been abolished and replaced with the crime of "Sexual assault" (sections 271-273 of the Criminal Code).

This was done in 1983, because parliament wanted to convey that sexual assault was a crime of violence as opposed to a crime of sex and thought this was a better way to describe it. In this same reform, a lot of sexist provisions (such as spousal immunity) were abolished.

The actus reus of sexual assault has three elements: (i) intentional touching that is of a (ii) sexual nature done (iii) without consent.

Intentional
in this context refers to "general intent" which refers to voluntariness and capacity. This is a requirement of practically all crimes. (...and is often the basis of insanity/intoxication defences. For reference, section 33.1 states that self induced intoxication is no defence).

Of a sexual nature is determined by the courts using a "totality of the circumstances" approach. It must be kept in mind that sexual assault is a crime of violence and not sex. Thus, sexual gratification is not required. Instead, the focus is on the sexual integrity and autonomy of the complainant. All of this is judged on an objective standard; the question is whether or not a reasonable person, as determined by the courts, would see the touching as sexual in nature.

The third element, without consent, is defined very precisely by the Canadian Criminal Code (273.1(1)). Consent is subjective, meaning the court must establish what was the internal state of mind of the complainant when the touching occured. Consent must be coninuous and apparent. You cannot consent in advance. Thus, in Canada, you cannot consent to anything while unconscious. Additionally, consent cannot be obtained through fraud/misrepresentation (i.e. lying about STDs).

The mens rea (fault requirement) involves the knowledge or willful blindness of the lack of consent of the complainant or recklessness in ascertaining that consent.


There you go.


Problem with this definition of consent is that according to it, I've been raped by my girlfriend several times. Since I can't give consent in advance, whenever she wakes me up in a sexual fashion, my unconscious, non consenting self has been raped. If I wanted to get back at her for some unrelated slight, I could press charges.


Yes, by the textbook definition, you have been raped.

This dilemma is known as the "sleeping kiss"

The court considered this in R v JA

Show nested quote +
The dissent in R. v. J.A. was primarily about this one point. Why can’t one consent in advance? Why should the law presume that consent is automatically revoked upon losing consciousness, even when that consent is given in clear contemplation of a future unconscious state? If your spouse asks for a kiss -- or more -- before you leave for work in the morning, even if he or she’s asleep, whose rights or interests are served by making that kiss into a criminal act?

The Crown offered two safeguards against the spectre of prosecution for such benign acts. Sure, it might be technically sexual assault if you kiss your sleeping spouse, but no reasonable prosecutor would attempt to charge anyone under such circumstances, and in any event, de minimus non curat lex: The law does not concern itself with trifling matters. The minority was unsatisfied with these safeguards, and for good reason: prosecutors are not always reasonable, and allegations of sexual assault should never be consider trifling.

While I am sympathetic to the minority dissent in this case, I am less worried about being prosecuted for kissing my sleeping wife, because of another practical safeguard. In order for a crime to be prosecuted, it must somehow come to the attention of the authorities, and in most cases this means a complaint by the victim. Although at law, the Supreme Court has declared that it is impossible to give consent in advance to sexual contact, in practice it is possible to give retroactive consent, simply by declining to report the offence.


Ultimately, it is necessary, and more important to the law to define consent in this way (i.e. must be constant and capable of being revoked at any time) because the manner of case that reaches the court is more likely to be sexual assault than a kiss in the morning.

In the case that was at the Supreme Court where this was decided, the consenting partners had engaged in asphyxiation play, and while one partner was unconscious, the other began inserting a dildo into the other's anus. Something they would have not consented to. It's a far cry from a morning kiss... or fondle.


Thank you. That was exactly the issue I wanted clarification on and you provided exactly the relevant quotation.

We start out in agreement; The concept of the "morning kiss" concedes that tacking strictly to technical/legal definitions is not enough in itself. However, the only mechanism it proposes for dealing with that is the assumption that only a true rape victim will seek legal redress after the act has occurred. If only people were that honest. Unfortunately the rate of men unjustly accused of rape is quite high.

In the case of assange, as well as the case I made reference to in my previous post, there is strong circumstantial evidence to suggest that the rape accusations have more to do with anger over some subsequent and unrelated event, such as a breakup or discovery of infidelity which leads the aggrieved party to suddenly "cry rape" as a form of revenge. I could easily do the same to anyone who has ever woken me up with a bj, taking advantage of the fact that the other party technically committed rape to avenge myself over some unrelated slight.

This entire conversation makes me sad though. I wish the bastard had been smart enough to not sleep with those fame chasers in the first place, and had the respect to use a condom when one asked him to and not give her surprise wake up sex with no condom on. I wish the women involved hadnt made a mockery of rape by pursuing a guy sexually, throwing a party for him and posting How cool he is right after he supposedly raped them. They are all acting like Idiots.
What is best? To crush the Zerg, see them driven before you, and to hear the lamentations of the Protoss.
beesinyoface
Profile Joined May 2012
2450 Posts
August 23 2012 09:02 GMT
#40
On August 23 2012 16:49 dynwar7 wrote:
What is rape?

Seriously? Everyone knows, no need to make this so complicated, let alone make a thread about it ............

Now allow me to ask. What is jump?

What a terrible post. I hope you're aware there has been changes to the definition of "rape" based on many variables throughout the years. Example being a girl being drunk and thus not in the proper state of mind to consent to sexual activity.

Anyways, I remember reading a few articles about girls who said they were raped and then later came forward and admitted they weren't telling the truth. This confession usually came a few years after the man had spent time in jail. I believe it happened to a popular football player? Can't confirm.

Interesting topic, will monitor.
aaaaa
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