When someone has sex with another person without their permission it is rape.
Of course adding context to all those situations, it's easy to see that I or the recipient would in all probability welcome the advance, and so it is not assault, however the fine line between "assault" and "relationship" at that point is entirely down to perception, and it makes this entire area massively ugly to try and delineate.
Asking for a written legal waiver before planting a kiss on someone you're passionate about seems essentially where all this is leading, and I really can't stand the thought of that.
You won't need a written legal waiver, you could simply ask if it is ok.
If you don't ask you're taking your chances that the other person reads the situation just like you do. Just yesterday a friend of mine ended up in an elevator with someone she ended up having dinner with because their flight got canceled. He tried to force himself on her in the elevator, I'm sure he thought it was ok and I'm also 100% sure that she did not give him any reason to think that kiss would be welcome. Now maybe there is a chance that such a kiss would be welcome, but if it is there is no harm in asking and if it isn't there is a lot of harm in assuming that it is welcome.
It's pretty clear cut to me. And I've never kissed any one of my former partners without making sure that such an attempt was welcome, but then again I haven't had that many opportunities to put this to the test.
If you are hanging out with a friend and start getting a bit handsy, then I could see the grey area. But it the cases where it is not wanted, a simple "no", or movement away, or pushing his hands off, etc would be enough to clarify where the line is, and ignoring that would turn it into unambiguous assault.
Yes, there are long and troubling discussions about how so much of sexual advances are silent and how it's hard to discuss consent with those, but this story was way the hell outside of that grey area.
No means no.
That's funny, I can't think of any examples from my past which could be construed as assault. And I rather doubt you can either; implicit consent is still consent.
> Asking for a written legal waiver before planting a kiss on someone you're passionate about seems essentially where all this is leading
I think that's quite an absurd conclusion. How do we jump from "don't kiss people who don't want to be kissed" to "obtain a written legal waiver"? That's like going "you shouldn't break into someone's house...so you need a written waiver before entering, even if they're literally walking next to you and offering you a drink", because maybe you've misread the situation, and when they said "come on in, but mind the dog" they meant "go away"?
In the real world body language and conversational hints make is very clear what's going on in most cases, and in a small minority of cases when those prompts are misread, there will be a clear "no", and then you apologise and move on.
"Then I went into my own bedroom but Dave followed me there, and that’s when he first propositioned to sleep with me. I said no. I reminded Dave that he knew my then-boyfriend and that we’d just talked about him earlier that night. At this point, I led him to the door and told him he needs to leave. On the way out, he pushed himself onto me to the point where I was backed into a corner, made contact to kiss me..."
Can you honestly read that and, taking the account at face value, go "wow, Dave was just making an honest mistake; he should have been more careful and asked for a written waiver before he forcibly tried to kiss a resisting woman who had repeatedly told him no and was in the process of evicting him due to his inappropriate advances"? Really? Truly? That's your takeaway here?
The problem here, as described, isn't that he didn't get her consent in writing, its that there was no consent at all. These are not comparable things!
The US Justice Department doesn't construe a forced kiss as sexual assault: https://www.justice.gov/ovw/sexual-assault
"Sexual assault is any type of sexual contact or behavior that occurs without the explicit consent of the recipient. Falling under the definition of sexual assault are sexual activities as forced sexual intercourse, forcible sodomy, child molestation, incest, fondling, and attempted rape."
I understand this incident occurred in Malaysia, which doesn't follow US law, but I don't believe they consider it sexual assault either. Some cursory review of LEO online forums is indicated a forcible kiss would be considered the lesser "sexual battery".
"The primary difference between sexual battery and rape is that with battery there is no penetration between the sexual organs. With sexual battery, all that matters is the non-consensual touching of another person's sexual organs. Sexual assault, like the broader crime of assault, constitutes the threat of force."
Even under that definition, I'm unsure if a kiss is considered either sexual assault or sexual battery, since sex organs aren't involved.
IANAL.
Edit: Appreciate the replies! You learn new things every day.
Obviously, the physical coercion McClure used to trap this woman against a wall is, even without the sexual component, itself an assault
A forced kiss could definitely be interpreted in that way, especially after being told to get lost.
The involvement of 'sex organs' is optional.
Let's parse that statement that you quoted:
> Sexual assault is any type of sexual contact or behavior that occurs without the explicit consent of the recipient.
Lack of consent: check
Sexual contact or behavior: check
Note the 'any type'.
> Falling under the definition of sexual assault are sexual activities as forced sexual intercourse, forcible sodomy, child molestation, incest, fondling, and attempted rape
Force: check
These are things that definitely fall under the term sexual assault, and a kiss goes quite a bit further than 'fondling', especially if it has already been indicated that such a kiss - and then there are kinds of kisses - is not welcome.
If I was on the defending side I'd hate to have to try to present the McClure case in a way that it might end up in this bracket, possibly that list is exhaustive and as long as the word 'kiss' isn't in the list you might get into 'sexual battery' but frankly I think that's just terminology, if the lady felt assaulted I don't fault her for picking the wrong narrow legal term and I suspect that in plenty of places the judge would see it in the same way.
"Historically, battery and assault were considered separate crimes, with battery requiring that the aggressor physically strike or offensively touch the victim. In that way, a battery was a “completed” assault. Many modern statutes don't bother to distinguish between the two crimes, as evidenced by the fact that the phrase "assault and battery" has become as common as "salt and pepper." These days, statutes often refer to crimes of actual physical violence as assaults.