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Sexual intercourse cannot be passive

Some accused in sexual assault charges defend themselves by asserting that the victim impliedly or tacitly consented to the sexual intercourse; thus, what transpired between the accused and the victim was sexual intercourse and not sexual assault.

Consent to sexual intercourse cannot be passive – it must be active and actively expressed. When two people mutually engage in sexual intercourse, there is a meeting of minds and mutuality to the sexual desire. Indeed, when two people are sexually attracted to the other, there is an active expression of the attraction, the desire and the consent to engage in intercourse.

Thus, a person who does not give active consent or one who does not actively express consent to sexual intercourse cannot be said to have given consent to the intercourse at all – the act is an assault of a sexual nature, not intercourse.

Consider a battered or abused spouse or domestic partner whose will is totally subjugated by the abusive spouse or domestic partner. When the abuser engages in sexual intercourse with the abused spouse, the abused spouse knows better to lie back and wait until the abuser has achieved orgasm and is finished ‘using’ the abused spouse. He or she allows the dominant spouse to have his or her way with him or her to avoid any and all unpleasantness between them. Research has proven that a habitually abused spouse no longer fights off the abusive spouse in order to survive and forestall harmful repercussions that might ensue. In this case, passivity of the abused spouse ensures her survival and safety.

This is a coping mechanism on the part of the battered spouse who neither enjoys nor relishes the sexual intercourse. Because his or her will is thoroughly subjugated to the abusive spouse, the abused spouse no longer has the will to resist or indicate non-consent. Thus, when the victim is a battered spouse, her lack of or failure to expressly indicate non-consent cannot be taken to mean that she has given passive consent to the intercourse.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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