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Does "no" always mean no in sex?

Does a woman give her tacit consent for sex solely by her acceptance of a man's invitation to his home or hotel room (or her invitation of him)? If so, is the man then free the man to have his way with her even if she says clearly, "I don't want to have sex"? At what point, if any, is it too late for a woman to refuse to proceed with intercourse? If she refuses and struggles against him, is it ever morally acceptable or legally permissible for a man to ignore her wishes and continue?

Brian , 06.02.2012, 11:16
Idea status: completed


Brian, 06.02.2012, 12:14
Some folks, like myself, may think the answer is clear, but at least one notable Objectivist recently, and significantly, disagreed.
Paul Hsieh, 06.02.2012, 14:14
A few quick comments on this very interesting question of whether/when a woman can withdraw consent for sex, such that it would constitute rape if the man continued nonetheless. There are two main scenarios:

1) Before sexual intercourse has occurred.

Suppose that the woman goes into the man's hotel room late at night, they fondle, and she acts in a way that clearly conveys she wants to have sex. She may even explicitly agree to sex.

But *before* they actually begin sexual intercourse, she's a little creeped out by the guy, she changes her mind and says, "No, let's not do this". Provided she's sufficiently clear in expressing her new preference (and not just stating an ambigous or fake "no"), she should be able to withdraw any earlier consent.

In that case, if the man persisted in having sex against her will, it would constitute rape.

It may or may not be possible for a woman to *prove* in a court of law that she had withdrawn her consent, but that's a separate (albeit important) issue.

2) After sexual intercourse has begun

In this case, the law is much murkier. There was a case in North Carolina a few years ago in which intercourse had begun, then the woman asked for the sex to stop. The man persisted and she accused him of rape.

According to this, the DA chose to not prosecute based on the following NC law:

[Begin quote]

According to the dismissal document, State v. Way, a 1979 N.C. Supreme Court ruling, says that if initial penetration begins with the victim’s consent, “no rape has occurred though the victim later withdraws consent during the same act of intercourse.”

[End quote]

At least as of a few years ago, different states have taken different positions on this particular issue:

"No Means No?: Withdrawal of Consent During Intercourse and the Continuing Evolution of the Definition of Rape", Matthew Lyon
Journal of Criminal Law & Criminology, Fall2004, Vol. 95 Issue 1, p277-314, 38p

Finally, even if the woman clearly says "NO" in mid-intercourse, it may take the man a few seconds to process this information. There was a recent case in Maryland when the man persisted in sexual intercourse for approximately 5 seconds after the woman withdrew her consent. He was convicted of rape.

If he had persisted for *minutes*, that would be one thing. But as many like the law professor/blogger above noted, the Maryland "5 Second Rule" may be too strict of a standard.

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