Fetish Friday: It’s Still Rape, Part 2

We’re gonna have another serious Fetish Friday this month,because I’ve left some strings hanging and people have been asking about when I’m going to finish up with the second part of situations that are rape, but people don’t think of them as rape. This is the second part of the “very special episode” of  Fetish Friday. While there may be a couple chuckles, and while there may be a few off color comments, the fact is today’s post is deadly fucking serious.

To that end, let me tell you right now: If discussions of rape are going to trigger you, you need to stop reading and go find something else to do. It’s cool, I get it, we’ll still be around next week and you’re not going to miss anything big.  But it’s probably best you don’t read today’s post.

Last time I gave a general discussion of the law surrounding the crime of rape, how it was initially interpreted at the common law, and how some states have come down with some whacky-ass decisions that have made situations that we think of as rape, such as withdrawing consent, technically not rape in certain places. I also talked a bit about the legal difference between “rape” and “sodomy” and how that can affect the law.

Today? Today we’re going a little more specific with two concepts: “stealthing” and “rape by deception.”

First, though, my standard disclaimer on this shit, especially since we’re discussing a really fucking sensitive topic:

I want to be really fucking clear here: I am not talking about consensual non-consent which is a very specific fetish I’ll get into in another post.

I also want to take a quick moment and say the next needed thing: Criminal laws are state dependent, and each state is going to vary wildly in what is a crime, isn’t a crime, and even what the meaning of an identical word or element of a crime is based on the statutory interpretations and the holdings of that state’s court.  There is not one massive “set of crimes” for the country, and the closest thing we have to look to on this is the Model Penal Code , a suggested statutory book that states tend to refer to, but not really adopt, when they create their individual criminal code. So, unless I’m talking otherwise, any discussion of the law today is going to be based on the Model Penal Code as a general guideline, and you’ll have to find a lawyer in your own jurisdiction to get your state’s take on it. I’m not that lawyer. I’m certainly not your lawyer. I’m talking about and educating, not giving advice here.

Also, and quite frankly, I want to be clear: Do not message me with stories about your time as a rapist or questions about this. If you think you may be guilty of any crime, you need to once again go talk to a lawyer licensed in your jurisdiction. You don’t need to be talking to me. I’m not your lawyer, there is no attorney-client relationship, and there will likely be no privilege.

With that out of the way, let’s just dive right into this shit, okay?

Stealthing: You’re an Asshole, but May be Not a Rapist (legally).

Did you know there’s apparently a group of fetishists and assholes out there that get off on tricking their partners into thinking they’re using a condom? I mean, I’m not really sure where the line blurs on this one, but it’s definitely a whole “power” thing for some people, while with others it’s being a pure asshole over the course of doing the dirty. A hatred of the latex or sheepskin that leads to them telling a partner they’re going to use a condom, but in the end they remove the condom either immediately prior to or during sex without notifying…you know…the person they’re sticking their genital into.

It’s called stealthing, and the question about whether or not it’s legally rape should be a fucking easy one, right? A person who has consented to sex with a condom, but wouldn’t have consented to sex if they knew their partner was going to remove the condom, has not really consented, have they? And even if they have, their partner has exceeded the boundaries of the consent that was given and therefore we’ve crossed the line from consensual activity to non-consensual activity. That’s rape, right? Because we all know you have the right to withdraw consent during sexual activity and the failure of the partner to acknowledge that can be rape, so why wouldn’t deceiving your partner about something as critical as your intent to use a condom to  get consent constitute rape?

…I want you to remember I only talk about the law, not make it, okay?

That’s gonna be important here, because you’re not gonna be happy with what I say next.

We’re not really sure how to treat this legally.

First, like we discussed last time, the law is based on a set of really specific definitions, some vague definitions, and how courts have interpreted both of those and applied them. While stealthing itself isn’t new, the concept that removing a condom during otherwise consensual sex could be viewed as a crime is somewhat new. Remember how we were talking last time about North Carolina and its old “It can’t be rape if it started consensually and there hasn’t been an end to the first consensual act” loophole? Or the Oklahoma loophole on “intoxication isn’t covered in the sodomy law, and this was sodomy not rape” discussion? The same thing is happening here.

The question boils down to consent, really. What is the person consenting to when they agree to have sex with a condom, is it the sex act or the sex act with the condom. Historically, courts have sort of treated the risk of pregnancy or infection as a risk of having sex in general and, with the exception of intentional failure to disclose a known STI of a certain nature (read: HIV) have refused to allow a criminal or civil cause of action to go forward so long as the sex itself is consensual. Which means, in the eyes of most of the courts, at the current moment, you are consenting to sex and not consenting to sex with a condom. That…seems fucked up, but it’s the current state of the law.

So the criminalization of stealthing is being discussed, though, and this is, in my opinion, a mixed bag. This whole idea of “stealthing” as a criminal concept is fairly new, only really coming into prominence with a couple law review articles specifically on the subject of stealthing were published. The end result of that article? There is no easy answer on how to treat stealthing under the current state of the law.

First, consent is the hallmark of any non-assault sexual encounter (Rape is falling in that classification), and if you give consent to sex with a condom and then someone violates that one condition, they’ve, in my mind, exceeded the boundaries of your consent. This is something we call “negating consent,” where some material aspect of your consent is ignored and therefore you could be treated as not having consented at all. I’ll point out, the United Kingdom has specifically held that an analog to stealthing (refusing to pull out before ejaculation) does constitute a negation of consent even between husband and wife. But even there you have questions like “Can you prove intent?” and “What are the surrounding circumstances.

So…I mean, despite the title of the article, right now stealthing isn’t legally rape or sexual assault in the United States.

But it is a violation of your partner, a negation of their consent, and I expect that will change.

Speaking of negating consent…

Rape By Deception is a Thing.

So Julio Morales saw a woman’s boyfriend leave for the evening, walks into her bedroom, and while acting like her boyfriend proceeds to have sex with the sleeping/barely-awake woman. On awakening, and not facing Julio, she consented on the belief that this was her boyfriend. When she discovered that is wasn’t her boyfriend well…shit got bad for old Julio the Sleep-Rapist.

By the way, this isn’t like a strawman argument.  This shit happened in People v. Morales  back in 2009.

The opinion there states one thing in great detail, and it’s the fact that the courts have struggled with how to treat cases of impersonation to gain consent. See, in law we have this thing called fraud in the act (telling someone you’re going to do A, but instead doing B) and “fraud in the inducement.” Fraud in the inducement is where you gain someone’s consent, but you gain it by misrepresenting a material fact, or by not correcting a belief the person hold that is material to their decision to give consent. In the first, that’s rape. “I’m going to give you a massage” is not the same as “I’m going to rape you.” In the second…well…look, the law is fucked up.

In some cases, like with the stealthing, the question became “They consented to the sex.” In others it became “They would not have consented had they known the truth of the matter, and therefore it’s rape.” And this shit fucking plagues us because of one simple thing: How difficult is it to prove or disprove consent in these situations, and will broadening the scope end up roping in innocent people?

Morales is sort of, in a fucked up way, a case that ended up getting it right in that, while Julio Morales was convicted (of raping an unconscious person…remember, she was sleeping when the whole thing started),  he wasn’t convicted of “rape by fraud,” because that law didn’t provide for that as a crime in that situation. That has changed, by the way, the introduction of a law that specifically criminalizes the obtaining of sex by deceiving someone as to your identity…in California. And that was specifically because of the Morales case. Prior to Morales, it was only criminal if the rapist was impersonating your husband and you were married. Now? Now you can’t fake being someone else for sex without a criminal penalty being attached.

Everywhere else? Still an open question, and so much of an open question that law students are writing papers on it.  And again, it’s not an easily answered question, because determining when a lie negates consent to the sexual act is a hard line to draw. In some cases it’s clear: a doctor saying they’re doing a medical exam and then assaulting you, somebody impersonating your spouse or, as the California statute now reads, “someone known to you” for the purposes of obtaining sex. But where does that line get drawn? Is it rape if someone lies about their marital status to obtain sex? I mean, it’s certainly a dick move, but does that mean the person is a rapist? How about their college major? Their family background? Their net worth? You can see how quickly it devolves into it, and trust me, at some point someone will make that argument.

Once again guys, not a strawman argument. Those last three points are things that, according to author and anti-emotional rape activist Joyce M. Short, are definitely indicative of rape by fraud. Ms. Short, by the way, is coming from a personal place with that, considering she herself was a victim of a long-term relationship filled with lies. I may not agree with her because of the potential for prosecutorial abuse and the very broad nature of her proposals, but I understand why she’s making them.

Here’s the dirty secret of law: courts like easy to apply rules, and “at what point is the lie a material reason of gaining consent” just isn’t an easy rule. It requires the court, and the jury, to balance the two sides in a situation where the victim says they did consent to sex but wouldn’t have, and essentially divine from the circumstances whether a victim is being honest about their intentions or not. Some cases are easy to do that in, like fucking impersonating another person the victim knows to gain sex. Others…look, I’m not going to say I’ve never told a white lie at a club to increase my chances. A lot of people have, but does that make all of them rapists?

It’s a fucked up area of law, simply because it’s hard, and due to that the courts are reluctant to weigh in and prefer to punt it over to the legislature to let them handle the situation. Which…I guess is okay? I don’t have a lot of faith in the legislature to always be right, but at least some clearly defined statute means cases where people are being significantly deceived in a manner that negates consent would have recourse, something they don’t generally have at the moment.

Oh yeah, quick sidenote: Colorado didn’t have any problem accusing someone of “rape by deception” back in 1996 because they were transgender. So before we start screaming how it’s terrible that “rape by deception” is in such a weird legal state because it’s plainly wrong, let’s be clear it can, in the wrong hands, be used as a weapon against transgender people.

A Quick Note Before The End.

Guys, this isn’t rape apologia. I think stealthing is detestable and frankly I think anyone who negates their partner’s consent should face consequences. But the legal question is more complex than my personal feelings or yours, especially where there is potential for misuse, abuse, or, my biggest concern, overzealous prosecution. I’d like to see well-crafted legislation outlawing it, as well as a number of civil remedies being normalized such as breach of contract or tortious assault/battery for it.

Likewise, if you have to lie to your partner to get them to sleep with you, I believe you’re removing their right to self-determination and their ability to consent based on the facts, which I personally view as essential to consensual sexual encounters. I would place myself firmly in the “Deceiving Someone for Sex is rape or sexual assault” camp as a private person. As an attorney…it can be abused and used by people, and has a whole question that would make it extremely difficult to prosecute feasibly. Also, I can see how it could be hijacked by certain groups to oppress minorities, and that worries me.

The short answer to the long discussion is, personally, I think this is rape. Legally, however, it may not be, and it may be a while coming, because this shit is complex and the law of it is still evolving.

Till next time,

-BB