Maybe Republicans should just keep their mouths shut whenever rape is being discussed. You know, just to be on the safe side.
Utah is considering legislation designed to protect the incapacitated from having to prove they did not consent to sex. The bill, an amended version of current law, was introduced after a 2013 case in which a man was charged with raping an unconscious neighbor on her porch. Republican state Representative Brian Greene prominently stepped into the Todd (“Legitimate Rape”) Akin Zone when he questioned the measure as too broad, saying,
“If an individual has sex with their wife while she is unconscious … a prosecutor could then charge that spouse with rape, theoretically. That makes sense in a first date scenario, but to me, not where people have a history of years of sexual activity.”
This, as you might imagine, ignited quite a bit of criticism. Greene appeared to be saying that it was okay to have sex with your spouse if he or she were unconscious. (He later issued a classic non-apology apology. I rate it a #7 on the Ethics Alarms Apology Scale)
Let’s begin with the fact that it is presumptively unethical to have sex with a person who cannot change their mind and withdraw consent. Giving the benefit of some very big doubts to Greene, he may have been addressing the rare (I hope) situation where a woman gives advance consent to a husband or long-time sex partner to have intercourse with her while she’s unconscious or drugged (the Bill Cosby variation). Did Greene read the legislation? It removes the requirement of proving a lack of consent when one is sexually assaulted while incapacitated. It doesn’t eliminate proof of consent as a complete defense. There is nothing unreasonable about requiring proof of consent when an unconscious or incapacitated person has been the object of sexual conduct; in fact, this, unlike regular intercourse, is a sensible application of the principles “yes means yes,” and “silence isn’t enough.”
The situation Greene seems to fear would only arise when a woman that a man presumed to have previously consented to unconscious sexual relations subsequently accuses him of rape. Why would that happen, if the man did not exceed what was consented to? How often does that happen? Does Greene fear some kind of evil rape trap? Here’s a tip: if you are a reforming necrophiliac, want to have sex with unconscious women, and fear that the object of your current affections will change her mind post unconscious sexual bliss, 1) find another partner, 2) get consent in writing and notarized before each episode, and 3) seek psychiatric help.
This is an excellent example of where the usual prohibition against the government sticking its big honker into the bedroom doesn’t apply. In fact, considering the difficulty of establishing consent and the potential for abuse, I would support a per se legal prohibition of sex with any individual incapable of ending the encounter midway, on the grounds that meaningful consent in such situations is impossible.
The debate reminded me of an almost certainly fake Penthouse forum question I read in law school. The supposed inquirer claimed that he had a fetish about fish, and secretly rubbed his wife’s naked body with smelts while she was sleeping. He wrote that one night when he was engaged in this fishy activity, she opened her eyes, then closed them again, giving him immense satisfaction that “she understood.” My interpretation?
She opened her eyes, realized a whack job was rubbing her with dead fish, and decided the safest course was to pretend to be asleep until she could contact the police and a good divorce lawyer.
And take a shower.
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Sources: ThinkProgress, Review Journal, Fox 13
Graphic: Paranoia Strikes Deep
Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts, and seek written permission when appropriate. If you are aware of one I missed, or believe your own work or property was used in any way without proper attribution, credit or permission, please contact me, Jack Marshall, at jamproethics@verizon.net.
Ethics Alarms 
Sorry, I’ve got no Comment of the Day worthy exposition on this…
Ugh.
“Maybe Republicans should just keep their mouths shut whenever rape is being discussed.”
I share your disgust with Greene — and indeed most of the intrusively unhelpful rules, regs and legislation going on around rape — but that may be the most out-of-context quotable line you ever gave free to the Democrats.
It is, but Republicans need to give seminars or something. They should be embarrassed. Are they?
Give seminars to politicians? hyunnh hyunnh haahhaahhaaaaa.
However, I was just wondering how the necrophiliac’s rehab program would work for Step Nine where you’re supposed to make amends or at least apologies to those people you harmed.
That’s pretty funny for 2:10 am.
That’s your 2:10am. I was getting ready to begin a night shift at midnight. Some of my best lines leap to mind when I’m about to shut down the computer.
I suppose any elected official has to be given a little rope for blabbing before engaging his brain, as Greene obviously did. But only if it’s not a trait. When they start making like Elijah Cummings, you have to assume something is basically wrong. Certainly, his lack of an appropriate apology for speaking out of turn reflects even less credit upon him.
I agree that Greene is an idiot, I’m not sure that the legislation is wise. I’ll try to make my point without going full Akin here. I think that we have to look at the laws as they are, the environment they’re in, and the probable outcome of the legislation. What is the problem, how does this fix it, and are there any possible, or probable outcomes?
So what is the problem? Rape. Rape is bad. Sex without consent is rape. It’s very hard to prove consent when the other person happens to be unconscious. How are we fixing the problem? By putting a book on the laws that says that a person no longer has to prove that they did or did not give consent when unconscious. What are the probable outcomes? I don’t see how they differ, actually.
Rape is an abhorrently difficult crime to prove. Causing someone to cease to live is almost always illegal, having sex with someone is almost always legal. The only difference is in someone’s state of mind, and their ability to let that state of mind be known. So what this legislation does is shift the burden from her proving “I did not consent” to “I was unconscious”, And the exact same inherent problems arise in either situation.
So yeah…. I don’t like this law. Not because I support rapists, but because I think it will be wholly ineffective, and we’re making sex too complicated. I think that the people pushing laws like this are waging a war with consent. They are coming from a place where they think rape is a wanton problem, if only we could make the data say so. And it has to stop.
Yep. The law would essentially say that “incapacitation is automatic non-consent”.
In which case the “victim” would then have to prove incapacitation…
Couple of interesting points, here. 1) Necrophilia is the only sexual aberration recognized as a psychosis, and; 2) There was a case a few years back in which a “club” of physicians was using insulin injections to render their spouses unconscious in order to have sex with them. It was dramatized on Special Victims Unit, as a possible murder. In the TV show, one of the wives died while in insulin shock, and it may have actually happened in real life, too, but I really don’t remember how it came to light.
This was referred to as “the ultimate bondage”. “Ick” factor, WAY high.
Green could have, perhaps, equated “unconscious” with merely “asleep”. It would have been his responsibility to clarify this understanding (or admit and correct such a misunderstanding) of the intent of the law, however.