We need a name for this (and a law against it)

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.)

Thanks, J-Bro!

20 thoughts on “We need a name for this (and a law against it)

  1. When I was 19, I was hanging out with this guy, and we were drinking, and flirting. He was ok, not the hottest guy in the room, but he was alright.
    Anyway, we went into a room, and started making out. He wanted to have sex, and I said, only if he put on a condom.

    He said ok. He put it on, we started having sex. At one point I thought he was trying to get comfortable on top of me, and he took off the condom. I told him, I wasn’t going to let him continue without a condom.

    He didn’t care what I thought about it. He got on me, held my arms and still had sex with me. While I repeated for him to get off me.
    He finally did, and I curled in a ball and cried.

    Later that night, my best friend asked me what happened. When I told her, she was furious. And told me to go to the police.
    Hesitantly, I did go to the police. But I was really afraid that they were going to make me feel like I was some whore who deserved what I got. Especially because we started out having sex in the first place, and its intimidating to go to the police when they were all male cops.
    But surprisingly they were very understanding.

    They took my statement, and they ALL were very supportive and told me, as soon as I said no, no matter what before that, he should have gotten off of me.
    When he took off that condom, I said no. He held me down and did it anyway.
    That was Rape. To this day, I still don’t like to talk about it. Probably the fear of judgment, of feeling like its still my fault. I did press charges, but alas the guy disappeared.

    But the person you write about should not only be worried about pregnancy, but disease as well, which if the male knew he had a disease, he is knowingly afflicting her. Anyway, just my two cents.

  2. What a horrible experience! I’m so sorry that happened to you, but glad the police were good. Very clearly, if you say no and the sex continues, it’s rape. I’m assuming that in the case linked to the sex stopped when she said to stop. It still seems to me that it’s rape (or something very like that) even before she said ‘stop’– from the moment he removed the contraception.

  3. This is worse than rape because it isn’t merely–and I’m sorry but I have to say merely–about some sort of violation of “bodily integrity” but is an action that puts a woman at risk of seriously harmful consequences.

    I’m no lawyer but I think pursuing the rape line is precisely what one shouldn’t do. It’s more like getting into a car with a guy at the wheel and discovering while driving down the freeway that he’s dead drunk. Or even better, handing over some money to your financial advisor on the understanding that he was going to put it into some save investment vehicle and then discovering that he’d invested it in some risky, fly-by-night venture.

    The issue has nothing to do with sex. It has to do with the breaking of an implicit contract. You enter into an agreement to engage in an activity that you’ve been lead to believe is virtually risk-free only to discover that your partner, for self-interested reasons, has exposed you to risk you didn’t bargain for.

    Even supposing that you don’t get infected or pregnant, this still seems to be something that should be recognized as negligent or deceptive. Suppose my financial advisor invests money I had reason to assume he’d put into safe T-bills into some speculative venture that actually pans out. I don’t lose my money. But, so sorry, I still have reason for complaint–and legal reason. Something like this happened to my mother and she, successfully, sued her broker.

    Now that I think of it, maybe what you want isn’t a criminal action about rape or whatever but a civil suit. If you were in the US you might be able to soak this jerk for all he was worth and more. Yum!

  4. My understanding is that sabotage of birth control/condoms has legal precedent as sexual assault in Canada, as it violates the “informed” part of “freely given, informed consent” required within the (kick-ass) affirmative model of consent within Canadian law. I can’t for the life of me find the specific case.

  5. @Baber-No one wins at the “what is worse” game- it can all be bad, and saying one is worse minimizes the other. Further, I have no idea how you can think that rape isn’t “an action that puts a woman at risk of seriously harmful consequences.”

  6. I think that the sticking point here is really whether consent was withdrawn. In the first case (Alvarez’), my understanding is that intercourse stopped once she made it clear that consent was withdrawn. That’s as it should be. Otherwise, it would certainly count as rape in my books (as in cbetty’s case above).

    As far as what actually happened to Alvarez… it’s clear that there was a breach of trust, and some sort of violation of her body (the arrogance and total disregard of removing her ring really shocks me–the condom removal, although also heinously deceitful, is less bothersome by comparison). Was it rape? Well, no: similarly, not telling a partner about an STD you’re aware you have and then engaging in unprotected (or even protected) sex is not rape.

    Is it assault? Well, in the case of the STD, it might be if the sex is unprotected–if protected, then the waters are murkier. I remember a well-publicized court case here in Canada recently about a man who was HIV-positive (and transmitted it), but I don’t recall the outcome. I’d be more inclined to classify it as dangerous (criminal) neglect. Similarly, slipping off his condom is murky for me, since the act is done to himself (despite also affecting her), and the intercourse was consensual–again, I’d be more inclined to opt for a serious charge of negligence.

    I think that removing her ring, however, does indeed constitute assault. It was done without consent and it involved *her* body, not his, and could have led to harm had she not been lucky enough to notice–indeed, it may still have. How it ended, however, is not relevant: what’s relevant is what he did to her in that instance, and how it’s a breach of trust and a violation of her body. I hope that someone takes up her case.

    It sickens me that men like this exist: their actions reflect poorly on us all.

  7. Ewww. Did someone actually say merely with regards to rape, and put bodily integrity in quotey quotes? Good job there.

    Wouldn’t it be nice if having some compassion for people who’ve been raped wouldn’t be *too* much to ask of our fellow humans? Wouldn’t it be nice if that were just, like, totally normal and taken for granted and not some daring feminist statement?

  8. I am not sure rape is the way to go here. Consider: if a woman has consensual sex with a man and manages to remove her nuva-ring/not take her pill/deliberately pierce the condom unbeknownst to him, is that rape of the man by the woman? I don’t think so. But if we consider the Alvarez case rape, than I think this should be rape too.

    I think is instead some kind of deceit/breach of contract/promise. The trouble with deceit or breach of oral contracts is that we can rarely claim damage in court, unless there are damages. If I promise to pick up your kids from school, and I don’t, there is very little you can do, unless your some damage was done to the kids due to my negligence.

    It’s a bit sad in this case, but I think it is still right that we cannot go to court for every breach of promise in our interhuman interactions. Ultimately having intercourse is a situation where both people put trust in each other. It is important that that be remembered (it seems to often forgotten). If one person breaches that trust – i.e. turns out to knowingly have an STD, be married where they say they weren’t, aren’t on the pill if they said they were, etc – that is a bad thing, but not something for court, I think, unless there is damage.

    I do agree that removing a nuvaring seems like assault – maybe that is a way to go.

  9. I think the guy is definitely wrong in this situation. He forced her to have unprotected sex. Although the Nuva Ring is hormonal, and removal right then didn’t necessarily put her at risk for pregnancy, condom removal puts her at risk for STDs. Sadly, she probably won’t have a case unless she does contract and STD.

  10. I agree with Jender. It seems like a sort of rape to me- even if legally it doesn’t qualify. I think one can consent to sex without consenting to all the different sorts of sex. For example, if one made it clear they were willing to have vaginal sex, but not anal, if one’s partner then forced you to have anal sex, I think that qualifies as rape. The difference between protected an unprotected sex seems substantial enough to merit the same sort of distinction. The difference is just that here, she wasn’t aware that her partner had violated the agreement that he wear a condom until she saw the ring.

  11. @Michel X: that was Carl Leone. He pled guilty to 15 counts of aggravated sexual assault, even though only 6 of the women are now HIV positive. They sentenced him to 18 years.

    I am most definitely in agreement with HEB about this being some kind of “breech of contract”, and that does fly here. Would that be problematic in places like the UK where the attitudes and laws that regulate sex work are different, though? I mean, I can already hear the slippery slopers “…well what’s to stop any old so-and-so from tying up the courts because she didn’t get paid for a blowjob… if we let this woman get away with this , family values will collapse…blah blah blah…”

    It is an assault, though. If I consent to let a man’s hand touch the fabric of my blouse at the wrist, and then he decides he wants flesh-to-flesh contact with my breast, that’s still assault if I didn’t consent to flesh-to-flesh contact. I believe ob-gyn’s can be charged for not wearing gloves, too. If I really wanted to be pissy, I could charge about half a dozen creepy men who touched my hair without consent in the last year. That’s assault here.
    (But I try to be respectful of the women who have truly been injured when I think on a decision to tie up the courts with a case that may add to a potential “little girl who cried wolf” effect–besides, as I’ve noted numerous times, I rather enjoy cussing creeps.)

  12. Hi guys! This is Anya Alvarez. Someone who reads this site sent me a link to it and I want to say thanks for all the support! So for I’ve received nothing but support to continue pursuing this case. This isn’t just about me though. I want to help create a law for all men and women who experience birth control sabotage.

    Anyway, check http://www.sexreally.com and http://www.knowmoresaymore.org to read more about this issue!

    Thanks again!

    –Anya

  13. I share others’ puzzlement about how exactly to categorize this case. (I’m leaning toward some version of “rape” or “assault” rather than “breach of contract”, because it constitutes malicious interference with a person’s body, and not just with their non-bodily property.) But even if I’m not 100% sure how to categorize it, I see no absolutely reason for the law to tolerate it. Interfering with somebody’s birth control without their consent is extremely harmful, and it’s not the sort of thing a person could do accidentally, as the side effect of some legitimate activity.

  14. Also, Anya, I think nobody should have to go through what you did, but I admire the way you’ve taken it as an opportunity to stand up for others!

  15. Thanks for stopping by, AA. I usually don’t face or tweet, but this cause might just convince me to do so.

    And excuse my misspelling of “breach of contract”. I wish I could say that was one of my intentional misspellings, but bass-ackward male views about these things are just not funny. That was just a typo.

  16. I am a victim of birth control sabotage that resulted in a pregnancy. I am trying to find out if there are any legal ramifications in the US, especially now that he is pursuing half time custody of my newborn, in hopes he will soon be able to collect child support from me… he has made sure he can exert power and control over me for the rest of my life (or at least the next 18 years)- I am stuck in a (US) state without my family or friends because this is where my child was conceived. I will never feel safe, and I will always fear what he might do to my child during court ordered visitation

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