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Is this rape? Consent? Something else?

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A concept like "rape" arises from a conceptual need to differentiate certain concrete incidents of sexual assault from others. The key motivation is seriousness of the sexual assault. To focus on just the presence or absence of consent of any degree, and to focus on a single aspect of the positioning of the penis relative to the vagina is to put the cart before the horse. Since concepts require measurements, we arrive at those aspects as measures of seriousness, and not the other way around. 

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On 8/23/2017 at 0:30 PM, StrictlyLogical said:

First, on legal principle, any crime must be defined with objective criteria and be defined to simultaneously protect a victim of an actual crime, and protect the rights of the wrongly accused.

I agree with this, with respect to a legal context. I would also like to add, however, that it is not alone a legal context which makes rape, rape. We need not even consider a rape a crime (i.e. with respect to some particular legal code) in order to recognize it as a rape.

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As such, "the consent" which must be present must be objective, i.e. external.

Yes, with caveats.

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No one is telepathic.

Agreed.

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If verbal and non verbal communications, both immediate and prior, in the full context indicate "YES", the momentary thought of "no" is not sufficient to convey non-consent, and If verbal and non verbal communications, both immediate and prior, in the full context indicate "NO", the momentary thought of "yes" would not be sufficient to convey consent... i.e. if you wish to indicate non-consent, or consent when the context indicates otherwise one needs to rebuff or respectively, make a move.

Agreed.

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Consent is contextual, evidence for it includes both past conduct and current immediate conduct.  That said, consent is a state of the moment: whatever state of consent is apparent from the past evidence, current evidence is a better indication of the current state of consent.

Agreed, although again with caveats.

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A person can change his/her mind at any time, and communicate it through conduct or statements, a "no" can become a "yes" and equally, a "yes" can become a "no".

Agreed.

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Consent is verbal and non-verbal, communication of consent can be provided by any number of verbal and nonverbal cues...

Agreed.

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human nature and our customs and culture of falling in love.. need not be lowered to the level of writing up an agreement prior to engaging in the back and forth of intimacy.

Yes, with caution.

Context depending, various forms of more-or-less explicit agreement may be warranted. I expect that in the world of what we consider "business," many transactions historically were done according to implicit agreement or verbal agreement that today would be handled by a formal, written agreement. Why this change? Presumably because there were sufficient confusions over time which resulted in court proceedings to make such a change generally sensible. (I do not know whether I would regard such a development as a "lowering," or what standard this appeals to.)

That said, in most of my daily dealings, making agreements with people (especially those I know well), I continue to rely on implicit and verbal agreements, because such seems sufficient for most of my purposes and has not cost me greatly.

Where sex is concerned, having been intimate with my current partner over many years, I rely on a plethora of non-verbal cues and implicit understandings. However, if I found myself divorced tomorrow (or whenever) and back in the singles scene, I would proceed with greater caution on a case-by-case basis. There have been in the past (and I can imagine in hypothetical futures) times where I have required a more-or-less explicit "yes" for various levels of sexual activity.

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Consent cannot be given (not in the moment) by the unconscious...

Agreed.

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Consent cannot be retroactively given... (i.e. one cannot simply say, after a kidnapping and repeated rape, that "well, now we are in love and so I now consent to what happened previously".)

Agreed, although I'm not quite sure what such developments mean for legal prosecution.

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Although the OP has attempted to be vague, "enter her without warning" is not vague.  "without warning" implies without invitation, verbal or otherwise, without guiding him toward her, without moaning louder as he got closer (as in some game of "hotter" and "colder"), it means she gave no communication, verbal or otherwise, that this is what she wanted.

Agreed.

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The OP has not stated that she did anything to indicate that her previous pronouncement that "kissing and touching was fine but no oral or penetration" had changed or that she did anything to indicate to him that her stance softened in any way.

Agreed.

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In the absence of statements of this kind, people (as opposed to philosophers or college student aspiring to become philosophers) will generally mess around, trying this and that within reasonable bounds of incremental experimentation, and through verbal and nonverbal communication, indicate to each other what is acceptable or desired and what is not.  In such a situation an innocent move towards doing something undesired by the other party is not by any stretch attempted rape but merely a back and forth requiring guidance and openness to correct.

Agreed.

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Clearly here, however, non-consent was voiced, "without warning" implies there was in fact no indication of consent for the act of penetration.  At that moment rape occurred.

Agreed.

What is more, I would argue that, given the context, it is reasonable to infer that this rape (coming "without warning," in the darkness and all) was intentionally so -- that Chris understood that Sally did not and would not consent to penetration, yet penetrated her regardless. That he chose to have sex with her against her will, while understanding that this was precisely what he was doing.

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What of the fact that she did nothing, that she "froze up"?  Without dismissing the emotional stress Sally was going through, unless there were objective indicia she should be afraid for her safety, or was threatened to act against her will, or was cognitively impaired to the point of being unable to give consent, her sexual actions (if she took any) after the rape initially occurred indicated consent for the continuing of the sexual intercourse.

I would argue (and have argued) that the fact of Chris's physically violating Sally's will -- the fact of rape (even in the moment of penetration) -- is grounds enough for Sally to fear for her safety. The OP describes Sally as "kind of intimidated," but does not describe that further (being, as you say, vague). Yet I think that physical intimidation to the point of being afraid for one's safety is a reasonable response to being raped. I think that rape conveys an implicit threat of further physical force (especially in a culture where rape and more brutal forms of physical violence are often linked).

When you mention "her sexual actions (if she took any)" constituting consent to continuing intercourse, I don't see how we can infer her making positive sexual actions at all from the narrative, as written. Given the pain that is described, and her overall mental state, it seems more likely that she would have acted in more defensive, rather than sexual, ways. But neither is described.

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In the full context, after the hanging out and the kissing with a guy she liked and was getting to know, when she began to participate in the sexual act, at that moment she gave consent. Notice the OP does not state she acted like a comatose rag doll, not moving, or making any sounds whatever... such in fact would be very strange and as such a strong (non verbal) indication of non-consent, and there would have been no consent for the entire time. 

The OP does not state that she acted like a comatose rag doll, nor that she did otherwise. The extent of the description of the sex act itself is: "It was very painful but Sally stuck it out." This does not tell me much at all, although it does not sound particularly "sexy"; "stuck it out" does not sound very participatory, either, and I would argue that if she did in fact act like a comatose rag doll, "stuck it out" would at least come close to a feasible description.

Being that it was "very painful," it is unlikely that she did not move at all or make any sounds; I think it reasonable that she made such motions and sounds as are consistent with being in a good deal of pain. Which is again not particularly sexy -- at least, not to me.

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Realistically speaking, communication of non-consent by any person in control of their voice and/or body, for any action by another person they like and are not in fear of, and with whom they were just making out with, is easily conveyed with a simple "no..please stop" or a refraining motion or push.  A fully conscious adult person's not taking any action whatsoever, almost always only occurs within the confines of that self-masturbatory orgy which is a college level philosophical hypothetical.

As with softwareNerd, you're speaking with confidence here. As much as I don't want to engage in "college level philosophical hypothetical" (and quite frankly resent this sort of rhetorical well-poisoning), I don't share your confidence in light of the study I'd linked to earlier in the thread (and other anecdotes I've heard), which seem to indicate that Sally's behavior in the OP is at least an approximation of real world behavior.

If scientists tell me that people do sometimes "freeze up" in these sorts of situations, but StrictlyLogical asserts that they do not, how do you suggest I choose between them (especially given that I've never been raped)? Are there conflicting studies I can examine? Or are you just going by your sense of it?

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In any case, it does not matter, however, because whatever objective evidence is discernible from the verbal or non-verbal communication in the acts after penetration, that "post penetration" consent cannot retroactively apply to the rape which occurred when in fact there was no consent... namely, at the moment of penetration.

Agreed that if there is "post-penetration consent" (to which I cannot yet agree exists in this story), that does not mean that the act of penetration was other than a rape.

Edited by DonAthos

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1 hour ago, DonAthos said:

I agree with this, with respect to a legal context. I would also like to add, however, that it is not alone a legal context which makes rape, rape. We need not even consider a rape a crime (i.e. with respect to some particular legal code) in order to recognize it as a rape.

Yes, with caveats.

Agreed.

Agreed.

Agreed, although again with caveats.

Agreed.

Agreed.

Yes, with caution.

Context depending, various forms of more-or-less explicit agreement may be warranted. I expect that in the world of what we consider "business," many transactions historically were done according to implicit agreement or verbal agreement that today would be handled by a formal, written agreement. Why this change? Presumably because there were sufficient confusions over time which resulted in court proceedings to make such a change generally sensible. (I do not know whether I would regard such a development as a "lowering," or what standard this appeals to.)

That said, in most of my daily dealings, making agreements with people (especially those I know well), I continue to rely on implicit and verbal agreements, because such seems sufficient for most of my purposes and has not cost me greatly.

Where sex is concerned, having been intimate with my current partner over many years, I rely on a plethora of non-verbal cues and implicit understandings. However, if I found myself divorced tomorrow (or whenever) and back in the singles scene, I would proceed with greater caution on a case-by-case basis. There have been in the past (and I can imagine in hypothetical futures) times where I have required a more-or-less explicit "yes" for various levels of sexual activity.

Agreed.

Agreed, although I'm not quite sure what such developments mean for legal prosecution.

Agreed.

Agreed.

Agreed.

Agreed.

What is more, I would argue that, given the context, it is reasonable to infer that this rape (coming "without warning," in the darkness and all) was intentionally so -- that Chris understood that Sally did not and would not consent to penetration, yet penetrated her regardless. That he chose to have sex with her against her will, while understanding that this was precisely what he was doing.

I would argue (and have argued) that the fact of Chris's physically violating Sally's will -- the fact of rape (even in the moment of penetration) -- is grounds enough for Sally to fear for her safety. The OP describes Sally as "kind of intimidated," but does not describe that further (being, as you say, vague). Yet I think that physical intimidation to the point of being afraid for one's safety is a reasonable response to being raped. I think that rape conveys an implicit threat of further physical force (especially in a culture where rape and more brutal forms of physical violence are often linked).

When you mention "her sexual actions (if she took any)" constituting consent to continuing intercourse, I don't see how we can infer her making positive sexual actions at all from the narrative, as written. Given the pain that is described, and her overall mental state, it seems more likely that she would have acted in more defensive, rather than sexual, ways. But neither is described.

The OP does not state that she acted like a comatose rag doll, nor that she did otherwise. The extent of the description of the sex act itself is: "It was very painful but Sally stuck it out." This does not tell me much at all, although it does not sound particularly "sexy"; "stuck it out" does not sound very participatory, either, and I would argue that if she did in fact act like a comatose rag doll, "stuck it out" would at least come close to a feasible description.

Being that it was "very painful," it is unlikely that she did not move at all or make any sounds; I think it reasonable that she made such motions and sounds as are consistent with being in a good deal of pain. Which is again not particularly sexy -- at least, not to me.

As with softwareNerd, you're speaking with confidence here. As much as I don't want to engage in "college level philosophical hypothetical" (and quite frankly resent this sort of rhetorical well-poisoning), I don't share your confidence in light of the study I'd linked to earlier in the thread (and other anecdotes I've heard), which seem to indicate that Sally's behavior in the OP is at least an approximation of real world behavior.

If scientists tell me that people do sometimes "freeze up" in these sorts of situations, but StrictlyLogical asserts that they do not, how do you suggest I choose between them (especially given that I've never been raped)? Are there conflicting studies I can examine? Or are you just going by your sense of it?

Agreed that if there is "post-penetration consent" (to which I cannot yet agree exists in this story), that does not mean that the act of penetration was other than a rape.

Seems we are mostly agreed, and where we appear not to be, almost certainly that stems from the indulgence in speculation due to the sheer lack of clarity in the OP, indeed in the purposeful obfuscation of facts in the OP, (or rather in the hypothetical quoted from facebook in the OP).

It is not told from the perspective of a fly on the wall... which would see and hear what actually happened, what actions were or were not taken, what words were spoken or not spoken, what sounds were made or not made... IMHO ( and I would guess you agree) not much more could be said without indulging in speculation.

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5 minutes ago, StrictlyLogical said:

Seems we are mostly agreed, and where we appear not to be, almost certainly that stems from the indulgence in speculation due to the sheer lack of clarity in the OP, ...   ...

By "we", I assume you don't mean everyone who participated in this thread :D 

More importantly though, the OP example is of little use except as a trigger to a broader discussion. At least a broader discussion about "rape". I see it as a way to explore something even broader: why do we form concepts, and how.

My take away from this discussion is that the contemporary concept of rape is pretty useless qua concept. We should simply call the whole range of "sexual assaults" just that, and not bother with some artificial categorization of some arbitrary group of concretes within "sexual assault".

 

Edited by softwareNerd

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1 hour ago, DonAthos said:

If scientists tell me that people do sometimes "freeze up" in these sorts of situations, but StrictlyLogical asserts that they do not, how do you suggest I choose between them (especially given that I've never been raped)? Are there conflicting studies I can examine? Or are you just going by your sense of it?

I want to add that dissociation is part of PTSD. A lot of people are skeptical that any person really freezes up. Most people don't freeze up in the face of danger or stress. But that's why PTSD is a disorder. The body opts to shut down psychological response because it ends up safer. That happens during trauma, even before developing PTSD. Perhaps Chris thought that it wasn't that bad to "slip in" - but it isn't up to Chris to decide that it isn't a "real" violation. Sally set her limits. She responded as she expected - badly. The sooner we get rid of the idea that people don't freeze up, the more reasonable and easier it is to talk about rape candidly.

I know SL mostly agrees with you and me here, but I see conceding this point as an error.

If people don't know much about PTSD and trauma, that's why I'm posting about it. Rape is traumatic - it makes people react in unhealthy and abnormal ways.

Edited by Eiuol

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But PTSD is a DISORDER, a malady, an abnormal condition, an unusual case.  That Sally of the OP had PTSD from prior sexual abuse is not a part of the setup.  It should not be assumed all women are like that.  Even if it were true Chris was not telepathic and could not know without explicitly being told.   This is retroactive rape from Chris' perspective.

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16 hours ago, Grames said:

But PTSD is a DISORDER, a malady, an abnormal condition, an unusual case.  

It's an unknown factor, it is possible she did. My point was to explain to people that that her reaction is exactly the sort of thing that may happen when people are raped. The example of Sally is an unusual case.

Besides, the point is she said no... There is no mystery for Chris. 

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It doesn't -matter- why she said no, the point is that it is a realistic scenario mostly. She did say no beforehand, no one yet has explained why her prior no was cancelled other than to say "she didn't resist, so she means yes now". But failing to resist is not a good indication that she changed her mind. It's just not. SL mentioned that earlier, no one responded to that. Suppose I'm right - is there any other reason to say it's not rape?

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50 minutes ago, Eiuol said:

She did say no beforehand, no one yet has explained why her prior no was cancelled other than to say "she didn't resist, so she means yes now".

Is that even the argument others are making, that "she means yes now"? I mean, we have her inner experience as well as her thoughts afterwards -- at no point does she decide, "yes, I want this." I mean, maybe I'm being naive, but at least we can all agree on that much. Right?

It seems to me that the best argument the "not rape" folks can make is that Sally's communications were ambiguous, so that either 1) in a courtroom, it would be hard or impossible to prove rape; or 2) it was reasonable for Chris to think Sally was okay with his penetration, so he's acting morally in the situation.

With respect to 1) I agree that it might be hard or impossible to prove rape, but such a legal context (which you'll note comes up time and again in certain arguments) is not the only context in which we can discuss rape; if rape were made legal tomorrow, we could still recognize a rape for what it is -- even if there were no associated criminal penalty.

With respect to 2) I cannot agree that it was reasonable for Chris to think Sally had changed her mind from earlier, and I do not think that the details of the narrative support the idea that Chris did think Sally had changed her mind, whether that would be reasonable for him or not. We do not know Chris's internal experience as we do Sally's -- just as in life, we are restricted to a single point of view -- but his actions take Sally by surprise, and I think that it is reasonable to infer that he designed them for just such a purpose. Given that she had told him (on more than one occasion, including that very night) that she did not want to have sex, and given that he penetrated her by surprise, in the darkness, I think it reasonable to conclude that he selected his means as a way of circumventing her expressed will, her lack of consent.

Whatever we believe happens thereafter, Chris knew Sally did not want this, yet he did it to her anyways. Whether we call that "rape" or not (though we should, because it is), it is not innocent, moral behavior.

50 minutes ago, Eiuol said:

But failing to resist is not a good indication that she changed her mind. It's just not.

I agree -- and I also think that much of the "not rape" argument hinges on this idea that if you do not actively resist a thing, then you must consent to it.

Recently in my community, a bank was robbed. From what I've been told, the robber approached the teller's window and gave the teller a slip of paper, indicating the fact of the robbery. There was no weapon involved -- or at least, no weapon indicated, no overt threat made. The teller received the paper and proceeded to give the bank's money to the robber, as per bank policy. There was no struggle. No shootout. No frantic screams for help. So was this, perhaps, not really robbery? Maybe the teller was consenting to the transfer of property -- because he did not say "no" -- and maybe it was reasonable for the robber to think that the teller had decided to give up the funds of his own accord.

Perhaps we should not call a mugging a mugging unless the "victim" winds up with scraps of the muggers' flesh under his fingernails. For many people do not actively fight back against a mugging -- they simply comply with the muggers' demands. And if I ask to borrow some item from you, and you say "no," perhaps a few hours later it is reasonable for me to suppose that you have changed your mind, and take that item from you (even under cover of darkness, taking you unawares). Perhaps that is not theft.

Besides all of this analogical thinking (which I know no one hostile to my conclusions will support, because analogy always is subject to the critique that "these are different situations," though that is rather the point of an analogy), I did introduce a study about people "freezing up" during rape. Here is another article talking about the same sort of phenomenon. I know some have said that such a reaction is unrealistic, that it's not human nature, that it doesn't happen in reality, etc... but suppose that this does happen, as these scientists and studies seem to indicate? Then I think we have to reconsider the idea that a "failure" to actively resist a rape somehow makes it other than a rape.

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8 hours ago, Eiuol said:

But failing to resist is not a good indication that she changed her mind. It's just not. SL mentioned that earlier, no one responded to that. Suppose I'm right - is there any other reason to say it's not rape?

My bad, DonAthos, not SL said this.

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10 hours ago, DonAthos said:

I agree -- and I also think that much of the "not rape" argument hinges on this idea that if you do not actively resist a thing, then you must consent to it.

It is a requirement that force or the threat of force must be present to violate a rights.  Bank robberies and muggings are sometimes not actively resisted because of the threat of force.  Rape is accomplished by force or the threat of force, usually a much longer and drawn out sequence of pushing around, threatening, disrobing, striking . ... etc than the "surprise sex" of this contrived scenario.    Sally is not presented with any threats or employment of force and gives every sign of consent to what happens in the darkness up until the moment that penis is in vagina, and then nothing changes after that moment.   Chris doesn't need to use force or even a threat of force.  Why does Chris not need to use force or the threat of force? Because Sally is cooperating and participating, and actively consenting in the make-out session up until the moment of penetration.   After the moment of penetration nothing changes except in the secret recesses of Sally's thoughts.   The consent that was present the moment before penetration is by every outward sign still present after the moment of penetration.

And no, that she said she didn't want to have sex hours ago does not mean she did not change her mind.  To put the point positively, it is always in Sally's power to decide to have sex.  That decision is communicated by actions and words, but in this case actions speak louder than words because Sally decided not to use any words.  All her actions said "yes".

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9 minutes ago, Grames said:

Because Sally is cooperating and participating, and actively consenting in the make-out session up until the moment of penetration.  

A make-out session doesn't have to do with consenting to sex except to see if she was interested. But he didn't need to ask because he already knew she wasn't interested. After that, there is no sign she did consent. If a person is apparently not reacting or dissociating or possibly unconscious, or anything else not normal, that's a sign a person is not in a state to consent to sex. Consent is active, as in responsive even if unenthused. Sally wasn't even unenthused. She was apparently dissociating - or Chris has damn good reason to stop and ask what's wrong. She had no actual power to say no at that point,. 

Do you at least agree that Chris acted immorally?

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15 minutes ago, Eiuol said:

A make-out session doesn't have to do with consenting to sex except to see if she was interested. But he didn't need to ask because he already knew she wasn't interested. After that, there is no sign she did consent.

Is it true that people in general never can change their minds?  Is it true that this one, Sally, is incapable of changing her mind? 

Sally consented to the date, she consented to the after-date, she consented to the dark room, the she consented to partial disrobing, she may have consented to other things which happen during make-out sessions but are omitted from this story.  And she consented to all those things without saying a word.  She could also consent to sex without saying a word.  Whether she did or not is the point of controversy but would you at least admit that she could have?  Does she have to verbalize consent to make it count?  

And no Chris did not even act immorally.   If Sally has some relevant pre-existing condition it is up to her to bring it up and discuss it with Chris beforehand, not play "gotcha" games retroactively.   There is no evidence within the story that Chris would not have stopped if asked or was pushed away.

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12 hours ago, Grames said:

Is it true that people in general never can change their minds?  Is it true that this one, Sally, is incapable of changing her mind? 

Sure, but she had said no, presumably a few hours before, and didn't give any particular reason to say she did change her mind. And then she acted in a concerning. At least as told, she wasn't making any gestures for sex - just kissing at most, which she already said was cool earlier. I'm taking this story as stated. I'm not imagining things that make the story more normal ("but are omitted from this story"). I don't think consent needs to be verbal always, as long as everyone is active. 

The reason I say Chris acted immorally is that he still knew her stated wishes. Having sex with someone who seems hesitant about it isn't any warm and emotional bond that makes for an enriching experience. "Surprise sex" isn't a way to ease someone into sex at all. Chris knew she was new to all of it, so an honest and prideful way to pursue sex in this case is to talk about it more. Chris can get Sally more interested, find out what she also is eager to try. Going for a surprise is not helpful, not if he wants to be a caring guy or ever wants to have sex with her ever again.

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21 minutes ago, Eiuol said:

Sure, but she had said no, presumably a few hours before, and didn't give any particular reason to say she did change her mind. And then she acted in a concerning. At least as told, she wasn't making any gestures for sex - just kissing at most, which she already said was cool earlier. I'm taking this story as stated. I'm not imagining things that make the story more normal ("but are omitted from this story"). I don't think consent needs to be verbal always, as long as everyone is active. 

The reason I say Chris acted immorally is that he still knew her stated wishes. Having sex with someone who seems hesitant about it isn't any warm and emotional bond that makes for an enriching experience. "Surprise sex" isn't a way to ease someone into sex at all. Chris knew she was new to all of it, so an honest and prideful way to pursue sex in this case is to talk about it more. Chris can get Sally more interested, find out what she also is eager to try. Going for a surprise is not helpful, not if he wants to be a caring guy or ever wants to have sex with her ever again.

You suggested Sally has a mental disorder, which isn't stated in the premise, and is not "taking the story as stated." You say verbal consent isn't necessary "as long as everyone is active" - kissing is active. You say a person can change her mind, but that Chris is immoral because he knew prior wishes but then tested for a change of mind. You say "Chris can get Sally more interested, find out what she also is eager to try" non-verbally if "everyone is active," which presumably Sally would be if she is "trying," but then you say that a "prideful way to pursue sex" would be only if Chris communicated verbally.

Looks like there are a lot of double standards going against Chris.

And of course, robotic sex instructions like "may I please put my hand on your left breast" isn't how any normal person has sex. In addition to giving Sally a mental disorder, you've moved the premise further from reality by insisting on verbal-instruction-only intercourse.

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Actually, I was saying that a mental disorder is one reason why Sally acted so oddly. But that is secondary. The important idea is that there are multiple reasons why this can happen. I brought it up at all because some posts have said that this isn't plausible, but it really is plausible. For Chris, all that matters is he ought to ask what's wrong when clearly something is wrong - failure to ask makes him legally at fault for her resulting psychological trauma. If you disagree on the legal consequence, fine, but I still see no reason to doubt he's acting immorally.

Regarding kissing, it isn't sexual activity, even if arousing. It is a prelude to sex, but it isn't sexual until and if he went "below the waist" (and if THAT is what happened, the whole scenario would be different). I don't see this as being active during sex. Given that Chris went to surprise penetration, that's when sex started. That's when she was no longer active. By the way, I don't mean "sex is only penetration". If there was sexual foreplay (oral sex, sex toys, things like that), this would be different. 

By active, I mean a bare minimum of activity. Doing something. As presented, Sally did nothing. So, all I mean is Chris at least on a moral level is to ask "Hey Sally, what's wrong?" and stop. Of course it's possible she changed her mind, but I see no mention of things that show she did. As I said above, I don't consider kissing an indication of consent or changing her mind. I'm not saying they need to do something as absurd as a contract. When someone only a few hours before said no, then it is better to just ask like "well, are you sure? This is more fun than I thought it'd be".  If there was nothing only a few hours before, this would be different. 

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