Is removing a cover rape?

[Whispers]

Two people come together for the purpose of fucking and it begins with his being covered and ends with the cover removed and he cums inside her.

No force involved.

Deception? Probably... We read about it where guys remove covers quickly changing positions and are back at it with the lady unknowing.

More rare... but has happened.... where the ladies does the same and saddles up a bare cock and the guy is unknowing.....

Heat of the moment makes for mixed reactions.....

Ladies and others are fast to use the word "rape".....

But what happened in a case like this legally?

[ShysterJon]

The Texas Penal Code doesn't use the term 'rape' -- It uses the term 'sexual assault.'

No, the hypothetical you posit would not be sexual assault, because whether or not the defendant wore a condom is irrelevant to prove the offense.

A more interesting hypothetical, in my view, would be when a participant in a consensual sexual encounter is HIV-positive or has full-blown AIDS. In Texas, defendants have been charged with assault with a deadly weapon in such situations. Of course, semen isn't a deadly weapon -- unless it comes from Whirlaway. Haha.

[passionatemichelle]

I would say legally no, but morally yes!

[Solitaire]

I don't remember if it was Australia or New Zealand... but the jury determined it to be rape, because it was not consensual.

IMO, I would agree. Similar to being roofied, or having the condom deceptively removed... in both instances your ability to protest has been robbed from you... if one is rape, then so is the other.

But juries rarely call me up, asking my opinion.

Then again, I could be confusing this with the case where the guy left without paying, and the jury called that rape. My personal mental jury is still out on that one.

[ShysterJon]

Originally Posted by Solitaire

I don't remember if it was Australia or New Zealand... but the jury determined it to be rape, because it was not consensual.

I think you're referring to a case in Canada. It doesn't apply to the U.S. Canada has a completely different type of legal system without, for example, a presumption of innocence.

[cafriend]

I think the guy should get his nuts kicking into this throat! This would be a guy who does not respect women.

Hobby or no hobby what he did is wrong.

[frenchlouie1986]

Yes, because consent would be removed once the condom came off. When a person agrees to have protected sex with you, the consent is conditional on the sex remaining protected. Once that condom comes off the sex is no longer protected and any further action would require the explicit consent of both parties. Any other action without the explicit consent of both parties is considered sexual assault because the person being assaulted was unaware the sexual assault was occurring which invalidates any prior consent. When it comes to sexual assault, deception is enough to invalidate any consent especially in cases which do not involve force. This covered under (b) 5 of the TX Penal Code. Also, Canada has a similar set of protections as the United States to include a presumption of innocence. Number 11. d. would be the relevant law here.

http://laws-lois.justice.gc.ca/eng/C...e-15.html#h-41

http://www.statutes.legis.state.tx.u....22.htm#22.011
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
(2) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of a child by any means;
(B) causes the penetration of the mouth of a child by the sexual organ of the actor;
(C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;
(D) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or
(E) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.
(b) A sexual assault under Subsection (a)(1) is without the consent of the other person if:
(1) the actor compels the other person to submit or participate by the use of physical force or violence;
(2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat;
(3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;
(4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it;
(5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;
(6) the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge;
(7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat;
(8) the actor is a public servant who coerces the other person to submit or participate;
(9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person's emotional dependency on the actor;
(10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser; or
(11) the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under Chapter 2, Family Code.

[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.

[frenchlouie1986]

I did not say sex meant to be done with a condom I said the consent for the sexual act was conditional on the use of a condom.

Sex is sex, the act of sex is clearly defined; sex is the penetration of the mouth vagina or anus of another person without regard to the use of a body part or foreign object so, sex is not strictly limited to penetration caused by certain objects. The issue here is consent and if someone consents to sex with a condom then the removal of said condom would require additional consent for the act to continue.

The original poster was asking if the removal of a condom without the provider's knowledge and the continuation of sex would constitute the act sexual of sexual assault, and in this case it would because the provider would not have any knowledge the sexual assault was occurring.

I am not arguing that a penis is a deadly weapon. I am saying that consent has been invalidated when the man removed the condom during sex which was conditional on him wearing a condom.

I like how you interjected a logic fallacy into the argument by shifting the burden of proof onto me, so here is my retort. There could be many reasons why there have been no appellate decisions to further back my claim. First, sexual assaults are severely under reported because the victim is ashamed or unaware the assault occurred as in cases like this or intoxication. Second, most cases are settled through plea bargaining in which case the offender forfeits most rights to appeals as part of the plea agreement. Third, because condom use and women's rights and sexual violence awareness is still relatively new cases such as these may not have reached an appellate court yet. Finally, and this is the most important reason, the appellate court is limited to determining that the trial was conducted fairly and any determinations made by the trial court were made in accordance of already established law. So in this case a determination would not be made on what constituted sex; the determination would be made on what constitutes consent and is consent a one time thing or is it continuous and the courts have decided that it is continuous and can be revoked at any time.

Now how it applies to this situation. The parties consented to sex based on the use of a condom. The male removed his condom without the knowledge of the woman and continued sex. The woman's consent to sex was removed when the condom came off. The woman was never given the option to give her consent again after the condom came off. By continuing to penetrate the woman the man was committing the sexual assault.

[ShysterJon]

Hold on... Did I miss the case you cited? I won't even limit it to Texas anymore. Lawyers derive legal principles from cases -- published appellate opinions. If you can't cite ONE CASE for your argument, well, you're SOL, amigo.

Nothing you wrote responds in any way whatsoever to my arguments -- NOTHING.

Again, unless you're qualified to do so, do NOT render legal opinions in this forum. Note: Watching lawyer shows on TV does NOT make one a lawyer.

You made the argument. Asking you to prove it isn't a 'logical fallacy,' friend-o. I understood your argument from the beginning. It isn't complicated. It's just flat-out wrong. Thank goodness you won't hurt anybody by testing it in court.

[frenchlouie1986]

Respond to my question. What constitutes consent and is consent revokable or conditional? Which is what I have been arguing the whole time.

I am not going to quote cases because I do not have access to a legal database and adding a relevant case proves nothing when the element of consent I am arguing for is included in statutory law. How do you not understand that? It is very simple. She agrees to sex with a condom. He removes condom. Consent ends. Sexual assault begins upon continued penetration. Under the law it is still an offense if the person is unaware that the assault was occurring.

Everything I said corresponds directly to what you said. I am not arguing about what constitutes sex. I am arguing about what constitutes consent. Big difference. There are no laws saying sex has to be done with a condom, but there are laws saying that both parties have to consent to sex and if one party consents to sex with a condom and the other party removes that condom and continues with the sex then the sex becomes non-consensual. Sexual assault is non-consensual sex and consent is a continuous thing that can be revoked at any time. How hard is that to understand? Do you just argue for the sake of arguing? Am I somehow threatening your internet stature? Will you not be the king of ECCIE anymore because you overlooked something? We all make mistakes.

By the way posting relevant case law only proves I have access to a legal database and anyone can purchase access to a legal database. I am sure you are going to use that as a red herring to disprove my argument because you can not win an argument on merit alone. So, go ahead you have my consent, which is something you should learn about, to interject whatever fallacies you want to try to make yourself look smart and retain all your adoring fans on the internet.

[ShysterJon]

Originally Posted by frenchlouie1986

Respond to my question> What constitutes consent and is consent revokable or conditional?

Texas Penal Code 22.011 doesn't define 'consent' -- it states what constitutes a lack of consent:

"b) A sexual assault under Subsection (a)(1) is without the consent of the other person if:
(1) the actor compels the other person to submit or participate by the use of physical force or violence;
(2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat;
(3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;
(4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it;
(5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;
(6) the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge;
(7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat;
(8) the actor is a public servant who coerces the other person to submit or participate;
(9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person's emotional dependency on the actor;
(10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser; or
(11) the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under Chapter 2, Family Code."

I know you like playing lawyer, Louie, so tell us where in the statute not wearing a condom can negate consent. It's your argument, and it's your burden to prove it.

btw, yes, consent can be revoked, but there has to be a basis for consent in the beginning, and you can't show any basis for your condom argument. I have no idea what 'conditional consent' is. It's not a term used in Texas criminal courts.

Originally Posted by frenchlouie1986

Everything I said corresponds directly to what you said.

False. For example, where's your response to this:

"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."

Or to this:

"Section 22.011(b)(5) relates to situations where the complaining witness is incapacitated with, for example, alcohol or drugs."

None of this matters, anyway, because without a precedent, all we have is a (bad) argument from some guy named Louie trying to play Perry Mason.

[Skittlez]

I like Perry Mason --- but I like SJ's avatar more!

[frenchlouie1986]

Oh my gosh, consent is the permission to do something such as when two people agree to have sex. I am going to explain this in baby steps so that maybe you can follow.

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

The law does not describe what may be used to penetrate the person only that the person must be penetrated, and since penetration is an element to the offense and not the object, the object used to penetrate the victim is irrelevant to determining if the offense occurred. Which means any foreign object or body part may be used to penetrate the victim. I think it goes with out saying this would include a penis without regard to the penis being in or out of a condom.

1. Two people agree to have sex with a condom.

2. He removes the condom without her knowledge and continues with the sex.

3. He knows she is unaware of the sex continuing without a condom and did not get her consent to continue.

4. She is unaware that the condom is removed.

5. She never agrees to continue having sex after the condom has been removed.

6. The consent given at the beginning of the encounter has been removed.

According to the statute she can not give consent if she is not aware the sexual assault is occurring. It is not hard.

This satisfies the requirements for b(5). she did not consent and was unaware the sexual assault is occurring.

The same would apply if the roles were reversed and the guy was the one who wanted to have sex with a condom.

This is not rocket science. She did not consent to sex without a condom and was unaware that the condom had been removed.

There is nothing that needs to be passed by the legislature covering condom use during sex. It is covered in the initial consent agreement between the two parties. The agreement was for sex with a condom. The removal of the condom invalidates that initial agreement because the initial agreement was for sex with a condom.

22.011 b (3) and b (6) are for instances of a incapacitation with alcohol and other substances or periods of unconsciousness as it is explicitly stated in the statute.

22.011 b (5) is for cases which involve deception like the hypothetical situation presented here.

Just stop arguing the only reason you are arguing this is because you are wrong. 22.011 b covers what is consent and what is not consent and how to determine if the act was consensual and the statute is explicit in that with one parties lack of consent and lack of knowledge that the assault is occurring the act constitutes a sexual assault.

Any case that was decided based upon consent being revokable at any point during a sexual encounter is precedent for this case. The use or disuse of a condom is only relevant to the determination of consent in that consent was given for sex with the use of a condom. There was no consent given for sex without a condom. The only thing that matters is was the encounter consensual, was the victim knowledgeable to the commission of the offense, and did the actor know the victim was unaware the offense was occurring.

I have not made any claims as to who I am nor am I trying to play lawyer. I do not present myself as an authority which is something ShysterJon does, but I have a feeling he is a paralegal working in a law office or a disbarred attorney instead of a practicing one. But I am only basing that assessment of some of the advice he has given on this board. I think it is sad that you claim to want to help people, but then try to justify sexual assault.

I wish the moderators would lock this thread because it is getting stupid.

[trillianaire]

This is some law review shit; interesting enough but bad for anyone to whip out except in an "unprincipled" court, and with maybe a void-for-vagueness type argument. Good luck, but don't test it. http://www.yalelawjournal.org/forum/sex-without-consent