Anya Alvarez was having what began as consensual sex, when she realised that her partner had removed his condom and her Nuva Ring. She is now trying to take him to court, and cannot find an attorney who will take the case. One lawyer wrote:
“Although wrong, there is no assault and no agreement to use contraception other than common courtesy and decency.”
If Alvarez discovers she is pregnant or has an infection, his opinion might change, he said. “Then, there might be a negligence action. But until there is harm there’s nothing there.”
Yeah, there’s no *harm* there.
I wonder what you all think. It seems to me that in an important sense it’s a form of rape– since Alvarez did not consent to unprotected sex. One might think that this line of thought requires commitment to the thought that if one hasn’t consented to unanticipated facts about the sex one is having, then it’s rape. (That would clearly be wrong: suppose one is shocked and horrified by the sheep noises one’s partner makes. Does that mean it’s rape, since one hasn’t consented to sex with sheep noises?) But I don’t think it does. Unprotected sex is, very plausibly, a different kind of sex act from protected sex– in a way that sex with sheep noises isn’t different from sex without sheep noises. (Though I admit some work needs to be done on the notion of kinds of sex act.)
It also seems like a violation of body integrity for him to remove her contraception from her vagina. (On the other hand, I don’t think this bit is integral to the wrongdoing, since it would still clearly be wrong even without that.)