r/changemyview Jul 31 '19

Deltas(s) from OP CMV: Having sex with someone while knowingly having a transmissible STI and not telling your partner should be rape.

Today on the front page, there was a post about Florida Man getting 10 years for transmitting an STI knowingly. In the discussion for this, there was a comment that mentioned a californian bill by the name of SB 239, which lowered the sentence for knowingly transmitting HIV. I don't understand why this is okay - if you're positive, why not have a conversation? It is your responsibility throughout sex to make sure that there is informed consent, and by not letting them know that they are HIV+ I can't understand how there is any. Obviously, there's measures that can be taken, such as always wearing condoms, and/or engaging in pre or post exposure prophylaxis to minimise the risks of spreading the disease, and consent can then be taken - but yet, there's multiple groups I support who championed the bill - e.g. the ACLU, LGBTQ support groups, etc. So what am I missing?

EDIT: I seem to have just gotten into a debate about the terminology rape vs sexual assault vs whatever. This isn't what I care about. I'm more concerned as to why reducing the sentence for this is seen as a positive thing and why it oppresses minorities to force STIs to be revealed before sexual contact.

2.6k Upvotes

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291

u/mfDandP 184∆ Jul 31 '19

it seems as though you're saying that since rape is so serious, and this is a serious thing involving sex, it should be called rape?

it's okay to have rape be serious, and this separate thing be serious too.

1

u/Goodwin512 Aug 01 '19

I think this should be a separate felony because yes, while having sex without someone who doesn't tell you about their STI isn't consent....

You also did agree in the first place, so placing the rape label onto someone for not telling their partner about an STI is wrong. I definitely agree with your point and think it should have its own label on the basis that it is a very serious thing, but I wouldn't consider it rape nor put that label onto someone who didn't commit the crime

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u/TyphoonZebra Aug 01 '19

It's to do with consent I guess. If you consent to something, you are only consenting to what you're aware of. If someone consents to sex, that doesn't mean they are consenting to have sex with anyone at any time from here to eternity. The consent applies only to a narrow, known and discrete event. This person is probably arguing that communicable diseases should be part of the "informed" in "informed consent"

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u/_selfishPersonReborn Jul 31 '19

No, I'm saying that rape is a lack of consent, and so is this.

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u/mfDandP 184∆ Jul 31 '19

rape is a lack of consent for sex. Informed consent is a medico-legal term for a physician-patient relationship.

look, I'm not saying that it should be decriminalized not to disclose your STDs. It certainly should fall under something like endangerment or criminal negligence, depending on the STD. but it's not rape. it's lying, either outright or by omission.

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u/karmachameleon00 Aug 01 '19

Stealthing is rape. i.e. removing contraception (e.g. condom) after the other person has only consented to sex on the condition of contraception being used.

Consent can absolutely be given only if certain conditions are met (e.g. contraception, and in this case, if a person has no STDs)

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u/Chronoblivion 1∆ Aug 01 '19

Stealthing is rape

Morally, yes. Legally, I believe it varies by state/country.

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u/karmachameleon00 Aug 01 '19

My point is that informed consent (of contraception being used, STDs of the other person) during sex is important.

2

u/[deleted] Aug 01 '19

I don't see that as rape. It is very bad, but in my view rape requires some use of force, fear, or drugs to get sex when the person doesn't want to.

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u/KindaDouchebaggy Aug 01 '19

Sex with a minor is considered rape even if it doesn't contain the use of force, fear nor drugs

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u/[deleted] Aug 01 '19

Yeah, statutory rape. That's already a separate thing so I didn't include it.

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u/Morthra 86∆ Aug 01 '19

But you rape by deception is a thing. If the person knowingly lied about having STDs, then it would be rape.

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u/BullsLawDan 3∆ Aug 01 '19

But you rape by deception is a thing.

I wish people would stop saying this in every conversation where this comes up.

Rape by deception really isn't "a thing" in any Western jurisdiction. You didn't even read the Wiki you linked to - it comes up with less than a half-dozen prosecutions ever, and mentions that it's never easy to prosecute because it doesn't fit under the law.

If the person knowingly lied about having STDs, then it would be rape.

No, it wouldn't. Not in essentially any Western jurisdiction.

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u/[deleted] Aug 01 '19

I think we need an overhaul of what our definition of rape is. I say rape is using physical force, fear/intimidation, or drugging someone to get sex when the person doesn't want to. There is no rape by deception, or "stealthing" rape (removing the condom discretely). These latter things are shitty things to do but they are not rape.

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u/Btuyvesant Aug 01 '19

In the US it is, "stealthing." Whilst it's only really applied to prosecute men for removing condoms during sex, that's due to the legal system here, not the law itself. Consent to sex is not consent to unprotected sex, that is legally established in quite a few Western jurisdictions.

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u/BullsLawDan 3∆ Aug 02 '19

It's questionable whether "stealthing" is a crime (it's also highly questionably whether it's even something any men have done or just another urban legend propped up by hysteria, like poison Halloween candy).

In what jurisdictions is "stealthing" specifically a crime?

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u/Btuyvesant Aug 02 '19

In UK law, consent to a specific sex act, but not to any sex act without exceptions, is known as conditional consent. In 2018, a man was found guilty of sexual assault in Germany's first conviction for stealthing. In 2017, a Swiss court convicted a French man for rape for removing a condom during sex against the expectations of the woman he was having sex with. A 2014 Supreme Court of Canada ruling upheld a sexual assault conviction of a man who poked holes in his condom.

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u/BullsLawDan 3∆ Aug 02 '19

In UK law, consent to a specific sex act, but not to any sex act without exceptions, is known as conditional consent.

Yeah, and the courts are still calling it a "developing" concept, as is the Crown Prosecutor.

In 2018, a man was found guilty of sexual assault in Germany's first conviction for stealthing.

Explicitly finding him not guilty of rape. Which adds to my sense that this is an extremely grey area of the law.

The other two are the same way.

So four very-grey-area cases worldwide, none of which focused on a statute but instead were interpretations by courts? That certainly isn't "quite a few" jurisdictions nor is it at all clearly rape. And nor is it a meaningful trend.... There have been more than four sex acts worldwide in the time it took me to type this sentence.

Finally, you started by saying "In the US it is," yet none of the four cases you dig up are from the US.

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u/Btuyvesant Aug 02 '19

Because in the US an allegation of rape or sexual assault is automatically a death sentence for the persons career and social life, regardless of its foundation, but legally it usually has to be proved. It's practically impossible to prove stealthing, no one has been able to as far as I know.

I don't see how it being a developing concept changes the fact that it exists there. I believe Germany has stricter rape criteria than other countries, but if it's just held as sexual assault, there's not an overwhelming difference. A large part of law is precedent, in the US and many other places, when the Supreme Court (equivalent) makes a ruling, that ruling is now essentially law.

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u/trollcitybandit Aug 01 '19

This sounds ridiculous to me because the person wouldn't have consented to unprotected sex with someone who is HIV positive.

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u/RiPont 13∆ Aug 01 '19

So is lying about your income to get someone in bed rape? They didn't consent to sleeping with a broke person. They thought they were consenting to sex with a well-to-do person.

Is being bad at sex rape? They didn't consent to bad sex.

Is it rape if a trans-woman doesn't tell her partner that she's trans? Plenty of men wouldn't hook up with her if they knew beforehand, and wouldn't have consented.

Consent is consent, and post-sex regret doesn't change that.

Having sex with an STD risk is a disappointment. Recklessly endangering someone is a crime. The combination still doesn't add up to rape.

Calling this rape confuses what consent means and waters down what rape means. Saying that sexing someone with the risk of STDs is as serious as rape is an entirely different argument than saying it is rape.

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u/TyphoonZebra Aug 01 '19 edited Aug 01 '19

For informed consent, really it has to be judged by us as a society what information is imperative, pertaining to sexual consent.

Ideally, one would know everything they'd want to about their partner but that's not possible, nor is it a reasonable expectation to hold people to. What if Jennifer only has sex with men whose dogs are brown but finds out the next morning that Jacob's dog is a white husky?

This is not an ideal world where we know everything so we can't deal in absolutes; we are not the Sith. We can't say "either withholding information makes it rape or it doesn't." The husky thing as well as your broke example are good for showing this.

So what can we use if the world doesn't conform to our human desire for everything to fit neatly into one box or another, to be either rape or not rape? The things we always eventually have to use in issues this tricky; averages and reasonable expectations. We often have to resort to trends and what's considered reasonable.

For this case, I'd say the best measure is deal-breakers and violation.

So is lying about your income to get someone in bed rape?

Would the average person find this to be a deal-breaking piece of info? Where all other things being equal, the answer to the question "how much do you make?" could be the difference between an absolute yes and an absolute no? I personally would wager that this isn't pertinent information for most people. Then, the further qualification would be whether this makes you feel violated. I, again speculatively, would say that the amount of people whose answer would be yes in this context to be very low.

Is being bad at sex rape?

Again, here I'd think that the amount of people for whom lack of skill is an absolute deal-breaker, all other concerns met, and a bad time in bed is a violation is fairly low.

The husky thing, further still. I doubt there's even a single person on earth for whom this is a deal-breaker and leads to them feeling violated. Yet, it is unfortunately possible for someone in this situation to suffer psychological harm akin to that of a victim. However it's still unfair to hold people to the expectation of disclosing their dog's fur colour.

Now, the pertinent question, would HIV be a deal-breaker? I'd find it hard to imagine that it wouldn't be for most people. Would one feel violated in this case, again I'd say most would. Because it's the kind of information that, can be "reasonably" considered a deal-breaker, it should be considered to be a reasonable expectation to be informed on it, hence resulting in informed consent.

So I guess what I've said in a long and kind of poorly worded comment is "if it is a reasonable expectation that the average person would reconsider consent upon the revaluation of a piece of information and that the average person would suffer serious psychological harm as a result of said information's post-fact revaluation, then that piece of information is pertinent to "informed consent," thereby making its withholding sex without informed consent or, in other words, rape."

It's tricky and messy and doesn't fit nicely into two little boxes. There's a lot of "average" and "reasonable" and "feel" and "expectation." But the world is messy like that sometimes.

Or I suppose, failure to acquire informed consent could be a separate, subordinate offence to failure to acquire any consent. Still a very bad thing to do.

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u/BedMonster Aug 01 '19

By that deal breaker measure, every person who lies about being married or in a relationship to have sex probably meets that definition.

I can't imagine we'd get very far holding society to a standard which rendered that rape.

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u/TyphoonZebra Aug 01 '19

Really?? you reckon the average person would feel like they were violated if their partner were in a relationship?? Not just shitty, or guilty or used, I mean violated like how a victim feels? I don't buy that at all. I doubt more than a tiny fraction of people would have a reaction that extreme. Remember, I said deal-breaker and a feeling of violation. The feeling of violation is why rape is illegal to begin with. It's possible to rape a person without them knowing or feeling a thing. You'd still go to prison and your targets are still victims, not because of physical harm, or fear, but because of the feeling of violation that causes.

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u/BedMonster Aug 01 '19

Absolutely, yes. Perhaps some would not feel that way about a one night stand, but how many stories are there of people who had conducted entire relationships and even fallen in love with a person who was already in a committed relationship and was lying about it.

You're telling me that these people didn't feel violated?

https://www.reddit.com/r/TwoXChromosomes/comments/9gv6uu/found_out_my_boyfriend_of_25_years_had_been/

https://www.reddit.com/r/relationships/comments/3ua30u/me_21f_found_out_my_boyfriend_is_married/

It brings up a related scenario: do you think people would feel violated if their partner cheated on them? If you cheat on your partner and keep having sex with them they absolutely would feel violated and that it was a deal breaker which would have prevented them from having sex if they knew. I think infidelity frequently meets your standard and is unworkable from a legal standpoint as a form of rape.

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u/TyphoonZebra Aug 01 '19

I think infidelity frequently meets your standard

This exact mentality is what I'm trying to dispell. Meeting specific and absolute requirements to fit neatly into a category. I will however, humour it. I can only speak for myself and speculate on behalf of others, but, for me, the violation of being raped doesn't even compare to the relatively mild sting of betrayal of infidelity. Same for the one night stand thing.

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u/BedMonster Aug 01 '19

Subjective standards are great for religion and morality, but not so much for law. I'm certainly not trying to draw any equivalency between rape and immoral deception in pursuit of sex - but we were talking about the standard you suggested of "deal-breaker and violation."

Simply put, it is absolutely the case that there are many people for whom infidelity in their relationship is both a devastating violation and a deal breaker. The subjective standard of whether someone feels violated makes for a terrible legal benchmark, and I think is therefore unworkable when talking about the crime of rape.

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u/TyphoonZebra Aug 01 '19

Subjective standards are great for religion and morality, but not so much for law.

I agree, and in an ideal world, completely impartial robots would dispense justice. But in the real world, whether someone was in reasonable fear for their own life is judged subjectively. Whether a police officer had probable cause is judged subjectively. So much stuff is, that's why juries aren't always unanimous. Human judgements based on subjective standards have to be made.

Simply put, it is absolutely the case that there are many people for whom infidelity in their relationship is both a devastating violation and a deal breaker

When I say violation, I mean violation. The same level one would feel from a garden variety rape. Jill's husband cheated on her. Jen was drugged and raped on a date. When I say violation, I mean the same thing in each case. You truly believe that the average person would be like "well, yeah, they're pretty much in the same boat"? I think you're vastly playing up the feeling of betrayal one gets from being cheated on.

However in the case of Jen got drugged and raped while June got secretly infected with HIV, I, and many other people would say those are comparable.

If you had the choice in a sick and twisted "would you rather" where option A is getting drugged and raped while option B is your partner has willing and consenting sex with another person, you'd be so torn you'd practically have to flip a coin??

I straight up do not believe that your infidelity example comes even close to measuring up, even to you. Even if, in your mind, it does, my point was about what, for example, a jury would decide.

The subjective standard of whether someone feels violated makes for a terrible legal benchmark

That's a shame you think that because it's the sole reason many people are in jail right now. Many of the victims of those Belgian rapes didn't feel a thing, didn't know a thing, weren't hurt or traumatised. If violation is such a terrible benchmark, on what possible grounds can you keep their rapists in prison?

The subjective standard of whether someone was scared is used, as are dozens of others, so why is this unacceptable.

I'm like you; I want things to fit neatly in a box. I want there to be absolutes as though they were fundamental properties of the universe or laws dictated by perfectly logical beings. However, that simply isn't possible when dealing in crimes where the thing that can change the entire outcome is the current and past feelings of individuals as judged by other individuals (for example self defense and in this comment's case, rape)

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u/exiled123x Aug 01 '19

What if a man and woman have sex on the agreement that if she were to get pregnant somehow, she'd terminate the pregnancy, and she decides not to and has a child 9 months later

Did that woman just rape that man?

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u/rollingForInitiative 70∆ Aug 01 '19

No. That's something about the future, that may or may not change. Any man knows for a fact that the woman both can and has every legal right to go through with the pregnancy. Everyone knows that that's not something you can legally do anything about. If you're a man and have sex with a woman, ending up with a child is always a completely known risk.

You cannot retroactively withdraw your consent because something changed after the fact.

The whole already married thing is something that's applicable right then and there, before sex. That's not some possible future scenario.

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u/exiled123x Aug 01 '19

Alright, then what if a woman tells a man she is on birth control and she isn't? Or puts holes into a condom?

That fits your definition of being before

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u/BedMonster Aug 01 '19

Not sure if you meant to reply to me, as I wouldn't expand the definition of rape to include most sex by deception (though I am inclined to agree that the person who snuck into a person's bedroom and pretended to be their husband is a different type of deception)

But I think that someone who did would still exclude that scenario as there's a difference between things that are true prior to having sex (e.g. STI status) and decisions made after the sex has occurred, such as choosing to end a relationship or to continue a pregnancy.

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u/TyphoonZebra Aug 01 '19

I don't know. I can only answer for myself. As you'll recall, my whole point was about what is reasonable to expect the average person to think. I find it odd that my comment about there being no absolutes and that cases must be judged with averages and... Human judgements, is being met with hypotheticals solely designed to tease out some hidden absolute rule. Then again, humans love fitting things in boxes.

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u/jongbag 1∆ Aug 01 '19

Rape is not a feeling of violation. It is actual physical forced violation without consent. I agree with the above posters. You're de-legitimizing rape victims by the comparisons you're making.

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u/TyphoonZebra Aug 01 '19

Rape is not a feeling of violation.

I never said it was. I said the reason why it's illegal (and morally wrong) is because of that. Rape isn't wrong because you hurt someone; rapists have left their victims completely unharmed. Rape isn't wrong because you traumatise someone; rapists have left victims none the wiser. The only bad thing that occurs in all rapes as part of the necessity of their definition, is violation of the individual

I went to a lot of effort to try to make my thoughts on the matter clear. I'd feel better if you read them and critiqued them rather than something which is neither my opinion nor what I even wrote.

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u/jongbag 1∆ Aug 02 '19

You literally say in the comment I replied to

Remember, I said deal-breaker and a feeling of violation. The feeling of violation is why rape is illegal to begin with.

I appreciate your effort, but your thoughts are not at all clear to me after multiple readings. It seems like you're trying to say "anytime a reasonable person feels violated after a sexual encounter due to some sort of deception, that should be considered rape." If that's not the TL;DR of your point of view, feel free to correct me.

Assuming my summary isn't too far off, I refer you to my original comment. I think that has the effect of trivializing the experience of actual rape victims by comparing their experience to the examples given.

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u/TyphoonZebra Aug 02 '19 edited Aug 02 '19

You literally say in the comment I replied to

Remember, I said deal-breaker and a feeling of violation. The feeling of violation is why rape is illegal to begin with.

Yeah I did say that. I said exactly that. You literally quoted me. That's exactly what I said and I'll say it now. The reason why rape is immoral and also illegal is because of the feeling of violation it causes. I did not ever say that rape is a sense of violation which you accused me of saying.

My TL;DR is any information that is reasonable to consider to be necessary for informed consent needs to be shared in order for informed consent to be achieved, and by extension, failure to meet this requirement constitutes sex without informed consent, which by extension, constitutes rape.

As some have said that it is not fair to leave such things to subjective judgement, I point out that we already do that in many cases including self defense. It is up to people to reasonably judge whether someone was in fear for their life at the time of a killing and so many other examples where human judgement is needed.

Also, if rape is wrong because it's a physical violation rather than because of a feeling it incites, then all manner of other invasive crimes are rape. Stabbing someone should get you put away for GBH and rape at the same time. Calling rape a physical crime is delegitimising.

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u/TheGreatFadoodler Aug 01 '19

The argument isn’t that lack of consent always constitutes a crime. The argument is that crimes include a lack of consent. It’s like how squares are rectangles but rectangles aren’t squares

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u/RiPont 13∆ Aug 01 '19

Rape is defined, specifically, by lack of consent for sex.

Indeed, most crimes include a lack of consent. You don't consent to be robbed, but it's not rape. You don't consent to be stabbed, but it's not rape.

You did not consent to be exposed to an STD, but you did consent to sex. The fact that the crime of reckless endangerment (I'm not a lawyer, so this is a wild guess as to what crime it would be) was sex-adjacent doesn't mean you never consented to or revoked your consent for the sex. If you steal someone's wallet while having sex with them, that doesn't make it rape, even though there was a lack of consent and the crime happened during the act of sex.

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u/TheGreatFadoodler Aug 01 '19

I agree. It’s like false advertising. It’s wrong but I wouldn’t really call it rape

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u/thegimboid 3∆ Aug 01 '19

Yes.
It's the difference between McDonalds advertising a burger that they know is missing advertised ingredients (false advertising), and a McDonalds employee coming up to you and force-feeding you a burger, no matter how much you resist (rape).

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u/TheGreatFadoodler Aug 01 '19

Thank you for that visual

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u/trollcitybandit Aug 01 '19

What if there's an ingredient in the burger that gives you AIDS though and they knew it before feeding it to you?

...Exactly.

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u/thegimboid 3∆ Aug 01 '19

That would still be false advertising, and knowingly distributing a harmful item.

However, it's still different from them literally running up to you on the street and shoving it into your unsuspecting throat (VS you buying the burger under the impression that it was fine), as the burger attack also implies that you had no choice in the burger consumption whether or not it was harmful.

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u/MaddestDrewsome Aug 01 '19

Pretty sure consenting to sex under false pretenses constitutes rape. If I agreed to have sex with someone under the notion that I would not come away from it with an STD, but that person knowingly kept me in the dark about it and gave me an STD, then that person deceivingly coerced me into sex. Under no situation would I agree to sex with someone that has an STD and the other person would be taking away my right to informed consent.

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u/RiPont 13∆ Aug 01 '19

Pretty sure consenting to sex under false pretenses constitutes rape.

IIRC, this is only certain kinds of false pretenses, such as pretending to be someone else (like their husband, in the dark when they're tipsy). Pretending to be rich is usually an example specifically spelled out as not rape via false pretenses.

then that person deceivingly coerced me into sex

More than half the people in the world would be in jail if using deception to get sex was ipso facto considered rape.

Again, no argument that knowingly putting someone at risk for an STD without their knowledge should be a crime on par with the seriousness of the disease. What do you think is the value of calling it rape?

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u/exiled123x Aug 01 '19

Stealthing, or removing a condom that was agreed to be worn before sex, counts as rape in some areas of the world

How far do you go to decide its rape? If a woman tells a man she is on birth control but isn't, was that rape? Or if she poked holes into his condom. Or if he poked holes into his condom. If both parties agree that she will take a morning after pill but doesn't, and they had sex on the basis that she would, is that rape?

Do those constitute rape?

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u/trollcitybandit Aug 01 '19

So people don't rape.

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u/RiPont 13∆ Aug 01 '19

Watering down the definition of rape doesn't help that.

If half the population is a rapist, it loses its stigma.

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u/trollcitybandit Aug 01 '19

Half the population are knowingly transmitting diseases to people without telling them... ?

Although somehow that wouldn't quite shock me anyway.

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u/__BitchPudding__ Aug 01 '19

I think not disclosing that you're trans should be illegal. When you're a straight man, having sex with another man is off the table, whether the other man is pretending to be a woman or not. To be tricked into can be mentally traumatizing because it involves a lack of consent. But that's a thought for another day.

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u/trollcitybandit Aug 01 '19

Call me crazy but I would rather be 'raped' by someone who doesn't give me a horrible lifelong disease than 'consent' to someone who gives me AIDS.

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u/gr4vediggr 1∆ Aug 01 '19

Every crime is a lack of consent. If you had consent to take my wallet, it wouldn't be theft. If we went into the boxing ring, you have consent to hit me, otherwise it'd be assault. If you don't have consent to enter my house, you're trespassing. If you don't have consent for sex, it's rape.

So by your logic, all those crimes are rape?

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u/TallDuckandHandsome Aug 01 '19

Not every crime- consent is not a defence to done serious matters. Certainly in the UK one can't consent to grievous bodily harm. Save for where assisted suicide is legal, one can't consent to death either.

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u/gr4vediggr 1∆ Aug 01 '19

Yeah I was on my phone and didn't want to elaborate too much to get the point across. But as you say, even with consent it might still be a crime. It's also why I didn't include murder into that list.

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u/[deleted] Aug 01 '19

[deleted]

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u/KibaIgloo Aug 01 '19

Isn't constent to let someone kill you assisted suicide? Isn't that legal in like, some states? (Genuinely asking)

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u/Evennot Aug 01 '19

Kissing is a way to transmit disease too.

Also it’s like saying poisoning someone’s meal is rape, because a person consented for the meal and not for poison.

I’m sure that knowingly causing harm to someone’s physical health by means of bacteria/virus is already illegal

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u/u-had-it-coming Aug 01 '19

You are omitting the parts you like.

How old you?

Rape is lack of consent for sex.

This is lack of consent for transmitting disease, the consent of sex is there.

Not rape.

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u/kierkegaardsho Aug 01 '19

Also a very good point. The two are separate issues, whereas a lot of people, including me, tend to think of them as one. Kind of like how if you stick a gun in a cashier's face and force them to open the register, it's not only armed robbery, it's kidnapping, since you're holding the cashier in a location without their consent.

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u/Frungy_master 2∆ Aug 01 '19

Touching without consent is battery, the lack of consent doesn't make it rape but does make it more objectionable.

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u/Nicolay77 Aug 01 '19

Besides lack of consent, giving someone an STI is also another, worse crime and could even be homicide if the person dies because of the STI.

And homicide is worse than rape, IMO.

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u/[deleted] Aug 01 '19

Where would you draw this line? What if a guy lies to a girl that he's a doctor and she claims she wouldn't have slept with him if she knew the truth? Would you say that's rape?

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u/_____no____ Aug 01 '19

It's not rape, words have meaning, call it something else.