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Comment by mieseratte | Hacker News Reader

> Having sex with someone who is sleeping is definitely (alleged) rape, unless she agreed to it beforehand or something.

I mean, that's a very grey and complicated area. I had an ex who would do that type of thing, and it was never discussed but was absolutely welcome. I suppose after the first time you could argue some type of implicit consent. Or maybe I'm just a Stockholm Syndrome candidate.

I have no idea the dynamics of the Assange case, but the hyper-contractual notion of consent that has come into popularity in the last few years just seems to ignore the humanity of human relations.

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Ezra Klein (a journalist for Vox) made this analogy on a podcast:

If I go to visit a very close friend, I might take something of value off their shelf as I'm walking out the door, without asking first. There's not necessarily anything wrong with this.

But, I had better be pretty fucking sure that I know my friend as well as I think I do, because if I misjudged, I'm a thief, and liable to be prosecuted by the full force of a law. Not "kind of" a thief—just a thief.

At least in England and Sweden, it is definitely the case that one cannot consent if one is not conscious, and therefore consent has not been given, therefore an offence has been committed. I believe this is true in the US as well.

Consent has to be given prior to each occurrence, and therefore prior consent means nothing about future consent.

See, for example, the High Court judgment (linked elsewhere in this thread) on the EAW served for Assange's extradition to Sweden in 2011, where the High Court concludes that the offence would be rape under English law.

> one cannot consent if one is not conscious

would that negate previously established consent? As in "hey if you wanna wake me up tomorrow with sex that would be nice"

At least under English law, you cannot provide consent in advance; you must have the ability to provide and withdraw consent at the time of the act.

Generally speaking, regardless of what your local laws are, "don't have sex with unconcious people, ever" is a good policy to have as a human being.

Absolutely! But much like protocols (strict in what you emit, liberal in what you accept), reality is complicated and not conforming to a desired standard.

How so? What’s complicated about determining whether someone is conscious before having sex?

I'm not sure if that's the correct way to call it, but I've seen (and acted myself) "half-asleep" state many times. Apparently, I was able to answer even moderately complex questions (mostly things like "where are the car keys" or "which food did you give to our cat yesterday") and looked quite awake, yet I have absolutely no recollection of it happening. I also sometimes give answers or say things I wouldn't say normally, ie. two days ago in such a situation I apparently asked my wife why did she wrap herself with tinfoil from head to toe (obviously, this was in my dream, but I said it out loud). We have a good laugh out of this from time to time.

So yeah, I can imagine myself giving a clear "yes" to something in that state despite being consciously unaware of the entire thing. I'm not sure if "approval" like that should count court - I'm just giving you an example of one possible complication for "determining whether someone is conscious", be it before sex or otherwise.

This recent development in English law strikes me as inhuman. It turns the kissing of a sleeping lover into a violent sexual assault. Passion and spontaneity become criminalized.

>It turns the kissing of a sleeping lover into a violent sexual assault. Passion and spontaneity become criminalized.

Right...

Is there an incident of a kiss on a sleeping lover being prosecuted?

> It turns the kissing of a sleeping lover into a violent sexual assault

No, it doesn't.

Yeah I know, the same way each time I touch someone in the street, I get arrested for violently assaulting them. I'm really tired of trying not to touch anyone. /s

I know someone that was raped while not being conscious. She didn't want to have sex with that person. While trying to press charge, she found others persons that had similar experience with that guy. The cops told her tough luck, not to stay with people she didn't trust (it was a friend...) and they threaten her of making false accusation (the prosecutor herself seemed surprised of that and the cops angrily answered that she wouldn't be accused of that, luckily). The prosecutor has not enough proof to go further with it... there should have been at least someone else in that room that could testify.

That's the current state of rape accusation. Pretty far from your "kissing of a sleeping lover" being criminalized.

Citation?

That doesn't really seem to eliminate such grey areas. Exactly how many seconds/minutes/hours are allowed to elapse between the question/answer "May I have sex with you?" ... "Yes", and the act taking place? When does consent expire?

Consent doesn't extend forward in time, it must be continuous.

I started to think of sexsomnia when I read that quote, it's when people engage in sex while sleeping, I looked it up on Wikipedia and they list a few cases: https://en.wikipedia.org/wiki/Sleep_sex#Legal_cases

Something like this has happened to me in the past. If I am having sex with my partner and we fall asleep, sometimes I will wake up 1 to 3 hours later and not realize that we fell asleep, and try to resume relations. This is our in the context of a relationship, and in each it’s been understood that this would not disturb my partner. So, it hasn’t been a problem. Now, if I fell asleep alongside someone with whom I was not just having intercourse (or especially never had done so) and did that, I could see how it would be a problem.

I'm not commenting on the legalities, only the humanities.

One can either build an overly-tight system that can incidentally put innocents in trouble or an overly-loose system that risks criminals getting away. Interesting that the Europeans seem to have gone with the latter.

They're trying to extradite him based on the legalities not "the humanities" whatever you're trying to mean there..

>Interesting that the Europeans seem to have gone with the latter.

Yeah we've gone the same way on marital rape too.

I'm not talking about Assange, just the notion that "I didn't get a formal Yes equates to Rape" because human relations are more complicated than that.

You're creating talking points that I never did, then fighting them down to make me sound like some kind of rape apologist. Kindly piss off.

He'd tried to get her to have sex without a condom all night. She continually rejected it. He (allegedly) knew fully that she did not consent to unprotected sex and waited for her to fall asleep to do it.

Let's put it this way:

If I tell you to take a fiver from my wallet and you do it, that's consensual. If you then later take another fiver out of my wallet without my permission, it's not consensual. If I catch you doing it, I might still be okay with it but that doesn't mean it wasn't non-consensual when you did it.

What if, instead of your wallet, it's a box by the door labeled "cab fare" and it's been previously discussed that this box is there for people in the house, me included, to use when catching a cab to the train?

Do you think the two are equivalent somehow?

It's a metaphor. In this case, for prior consent given in the most explicit terms possible to bound the discussion.

Sure - but in the case of sex, the equivalent is a written agreement to have sex while asleep at at a specified time and place with a specified person.

Your cab fare metaphor is a very misleading illustration of this.

Well, that would be different, because women aren't objects labelled "for having sex with".

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