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Consensual Insemination re Assange rape without a condom, insemination a separate battery

Consensual Insemination re Assange rape without a condom, insemination a separate battery

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Vol.

 2, 2011
LSD Journal
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CONSENSUAL INSEMINATION:*
AN ANALYSIS OF SOCIAL
DEVIANCE WITHIN GENDER,
FAMILY, OR THE HOME
(ETUDES 6)**

Carmen M. Cusack***


I. INTRODUCTION

Rosie and Eddie are engaged in foreplay.
Rosie gives Eddie consent to penetrate her sexually.
He does. Their sex builds for some time when
suddenly, just before Rosie can climax, Eddie
ejaculates inside of her. Rosie immediately
exclaims “Did you just cum?” Eddie, thinking that
she is alluding to his brevity, apologizes for his
performance. Rosie receives his apology, but adds
“I didn’t want you to cum inside of me. I can’t
believe this!”
What Rosie has just experienced is common.
Unless Eddie is the carrier of a sexually transmitted
disease (STD), then what he did is not criminal in
the U.S. This paper will address some questions
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which will be answered by the conclusion that U.S.
law lacks some protection for female sexual agency.
The following questions will be asked and
answered: What is the purpose of semen and how
does the purpose of semen relate to sexual assault
and unprotected sex? If any unwanted sex act is a
sexual assault, then when will American society
acknowledge that unwanted insemination is a
separate crime? Does the law sufficiently
distinguish between a woman’s right to have sex, a
woman’s right to have unprotected sex, and a
woman’s right to consent or withhold consent from
being inseminated? How does a global cross-section
of data that correlates intimate partner violence,
condom use, and sexual agency relate to patriarchal
attitudes, and further explain why U.S. law must
punish nonconsensual insemination? How can we
learn which laws protect women from recent events
involving Julian Assange and the country of
Sweden?


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II. SEMEN

What does semen do?
1
The main purpose of
semen is to carry sperm from a man’s testicles,
where it is produced, into a woman’s uterus.
2
The
sperm will try to locate and penetrate the ovum to
begin cellular reproduction.
3
Before reproductive
rights gave many females the power to prevent
                                                            
* This subject and the themes in this paper are being researched in
conjunction with my Ph.D. Dissertation in Criminal Justice with a
Specialization in Behavioral Science, under Dr. Lenore Walker,
Dissertation Committee Chairperson at Nova Southeastern
University.
** The etudes are a series of papers that question popular American
myths regarding the supposed legal consequences of certain taboo or
socially deviant behaviors in gender, families, or the home. An etude
typically refers to a musical study of a particular technical problem,
which transforms into an aesthetically satisfying composition. The
etudes, titled “An Analysis of Social Deviance within Gender,
Families, or the Home,” tackle social presumptions that taboo
behavior is illegal. Together, these etudes are aesthetically satisfying
because they contribute to and defend subculture. The etudes debunk
myths and presumptions about judicial or legislative paternalism; and
they assist readers who question the extent of their liberty to be
deviant from normative morality or behavior within their gender,
families, and homes.
*** I am grateful to Matthew Waranius, Editorial Assistant of the
Journal of Law and Social Deviance, for supplying invaluable review
of my work.
1
Planned Parenthood, How Pregnancy Happens (viewed on Oct. 15,
2011) http://www.plannedparenthood.org/health-
topics/pregnancy/how-pregnancy-happens-4252.htm.
2
Id.
3
Id.
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sperm from conducting reproductive affairs inside
of their bodies, the most socially acceptable and
moral receptacle for sperm was a vagina.
4
Now,
women have greater rights to choose whether,
when, and how to reproduce.
5
With these rights
women have developed agency and become better
educated about the fact that insemination can be
detrimental to their economic, social, professional,
familial, religious or spiritual, and physical well-
being.
6

Women are no longer willing to accept the
antiquated rendition of sex that calls for a man’s
ejaculatory fluid to wind-up inside of them as a
protocol of sex.
7
Contemporary women have
learned that condoms prevent semen from entering
the female body.
8
But theoretical feminism
demands that sexual agency dictates how a woman
                                                            
4
Id. Infra note 5.
5
Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v.
Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973);
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505
U.S. 833 (1992).
6
Id.; Supra note 1.
7
Id.
8
Id.
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behaves sexually.
9
A woman should not have to use
a condom if she does not want to.
10
Feminism
demands that a woman should be able to have
consensual unprotected sex with a man without
having to consent to condom use.
11
A man should
be responsible for his ejaculatory fluids by whatever
means; and a woman should have the reproductive
right to separate pleasure from reproduction without
blame or burden.
12


III. CONSENT


When a man inseminates a woman without
her consent, it is sexual assault.
13
Sexual assault is
                                                            
9
See generally Henk Boer & M. Tshilidzi Mashamba, Gender Power
Imbalance and Differential Psychosocial Correlates of Intended
Condom Use Among Male and Female Adolescents From Venda,
South Africa, 12 Brit. J. Health Psych., 51 (2007).
10
See generally Aya Gruber, The Feminist War on Crime, 92 Iowa L.
Rev. 741, 830 (2007)
11
Id.; Planned Parenthood, How Pregnancy Happens (last viewed on
Oct. 15, 2011) http://www.plannedparenthood.org/health-
topics/pregnancy/how-pregnancy-happens-4252.htm.
12
Planned Parenthood, How Pregnancy Happens (last viewed on Oct.
15, 2011) http://www.plannedparenthood.org/health-
topics/pregnancy/how-pregnancy-happens-4252.htm.
13
This assertion will be supported by the article. While
nonconsensual insemination is not always illegal in the U.S., many
laws protect women from being transmitted STD’s through
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the generic term given to all unwanted contact that
is sexual.
14
A woman who consents to having
                                                                                                       
nonconsensual insemination. E.g. Fla. Stat. 384.24 (criminalizing the
unlawful transmission of numerous STD’s); Ind. Code 35-42-2-6
(criminalizing the unlawful transmission a specific few STD’s); Iowa
Code 709C.1 (criminalizing the unlawful transmission of only HIV).
See generally STD Transmission Laws, Criminal Defense Lawyer,
(last visited Oct. 9, 2011)
http://www.criminaldefenselawyer.com/resources/criminal-
defense/crime-penalties/std-transmission-laws.htm.
14
Nonconsensual insemination is not a crime in the U.S. See
generally, B. Anthony Morosco, The Prosecution and Defense of Sex
Crimes, Treatise, LexisNexis (2011). Globally, reproductive coercion
has been treated by the law, but as it relates to abortion, poverty, and
abusive relationships. See e.g., Corene T. Kendrick, The Illegality of
Abortion in Mexico, 39 Stan. J Int'l L. 125, 149 (2003). “[R]easons
for legal abortion: when the pregnancy is the result of rape
or nonconsensual insemination, the pregnancy would represent a
grave risk to the physical or mental health of the woman, there are
grave genetic or congenital abnormalities in the fetus, or there is a
miscarriage occurring that must be completed.” Id. It is novel to
address it as a woman’s rights issue that casts ejaculation or semen in
a negative light. Susan Frelich Appleton, Toward a “Culturally
Cliterate” Family Law?, 23 Berkeley J. Gender L. & Just. 267 (2008)
(Pages omitted). “[A] privacy-based approach is consistent with an
appreciation of the law's limitations. As Kathryn Abrams has
observed, although from outside the family-law zone, “the enormous
variability of sexual pleasure and its status as an affirmative good ...
[makes] it difficult to imagine ... how it could be programmatically
promoted by legislative or judicial officials.” And, as Katherine
Franke has asked, “can law protect pleasure?”.....They show how
family law's treatment of sex as “private” is neither complete nor
inevitable. They also demonstrate that the state (here, the federal
government) sees a role for itself in supporting and enhancing its
citizens' sexual lives....[T]hese government initiatives reflect[]
traditional gender stereotypes. Neither the clitoris nor women's
orgasms receive attention amidst preoccupation with penile-vaginal
penetration—so that old discriminatory patterns persist even in this
era marked by professed legal commitment to gender
equality...Females are expected to play the policing or “gatekeeping”
role—a burden that leaves little room to prioritize or to indulge in
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unprotected sex may do so without wanting to be
inseminated.
15
If the man also consents to
unprotected sex, he should not assume that he can
engage in a separate sexual act of ejaculating inside
of a woman.
16
Consent should never be presumed in
sexual activity.
17
Each sexual act, beginning with
the first kiss through the kiss-goodbye should be
consensual.
18
Separate acts require separate
consent, or it is a sexual battery.
19
Examples of this
are that consent to a pop kiss does not equate to
consent to a French kiss.
20
Consent to a massage
does not equate to consent to a happy-ending.
21

                                                                                                       
pleasure....Men are promised a “more satisfying sexual relationship”
as a facet of healthy marriage. By contrast, healthy marriage promises
women protection from dangers: a decreased likelihood of becoming
“victims of domestic violence, sexual assault, or other violent
crimes” and of contracting sexually transmitted diseases. And
children and youth raised by parents in healthy marriages are
promised the decreased likelihood of becoming sexually active
teenagers.” Id.
15
Planned Parenthood, How Pregnancy Happens (last viewed on Oct.
15, 2011) http://www.plannedparenthood.org/health-
topics/pregnancy/how-pregnancy-happens-4252.htm. See generally
supra note 5.
16
Id.
17
Id.
18
Contra supra note 14.
19
E.g. supra note 14.
20
E.g. supra note 14.
21
Id.
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The law cannot presume consent.
22
Juries do
not presume that because a woman wore a short
skirt, that she was signaling consent to have sex
with a stranger in a dark alley.
23
A rape victim
cannot be blamed by the system for her “risky”
behavior.
24
Similarly, the law cannot refrain from
prosecuting nonconsensual insemination because
women consent to unprotected sex.
25
The current
legal framework should make room to include
nonconsensual insemination.
26
Within the current
                                                            
22
Jane E. Larson, “Women Understand So Little, They Call My Good
Nature ‘Deceit’”: A Feminist Rethinking of Seduction, 93 Colum. L.
Rev. 374, 415 (1993). “The law regulates the voluntariness of
relationships out of a moral respect for persons and to avoid
distortions in human interaction. Under even the minimalist
justification for governmental action offered by classical liberal
theorists, coercion justifies legal intervention in what would
otherwise be private relationships. The distinction between coercion
and consent also determines when a victim may be held legally
responsible for her conduct and choices. Under the doctrines of legal
excuse for duress or fraud, an individual is not culpable for actions
taken or choices made under coercive influence. Conversely, if a
victim willingly and knowingly consents to an otherwise coercive
influence, the taint of involuntariness is removed and she is again
accountable for her actions. A victim's consent can negate a
perpetrator's liability for otherwise unlawful coercion, but if that
consent was obtained by force or fraud, the attempted defense fails.”
23
Morosco, The Prosecution and Defense of Sex Crimes, Treatise
(2011).
24
Cf. Id.
25
Id.
26
Id.
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law, a woman who claims to be violated in any
sexual assault is first interviewed by police; if the
facts give police probable cause then they arrest the
perpetrator, and he can plead not guilty at trial.
27

For most sexual assault crimes, a defense to
unwanted sexual contact is consent.
28
In the current
sexual assault legal framework regarding the
unlawful transmission of STD’s, as should be the
case with this new crime if a jury believes beyond a
reasonable doubt that the man inseminated a woman
without consent, then the man would no longer be
presumed to be innocent, and would be convicted,
guilty as charged.
29
When a woman claims to have
been assaulted by a man’s ejaculation, should her
complaint not be taken seriously simply because she
consented to unprotected sex?
30

Use of a condom does not imply consent to
sexual acts and the government cannot replace their
reasonability to punish sexual assault under the
                                                            
27
Id.
28
Id.
29
Id.
30
Id.
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guise of staying-out of such private affairs.
31

Rapists use condoms.
32
A rapist may use a condom
to protect himself from disease.
33
Likewise, a
woman may choose not to protect herself from
diseases like herpes, which are transferred through
skin contact, but she may choose to protect herself
from HIV by requesting that a man withdraws prior
to ejaculation.
34
If the intentional transmission of
                                                            
31
Id.
32
Carla M. da Luz & Pamela C. Weckerly, The Texas Condom-Rape
Case: Caution Construed as Consent, 3 UCLA Women’s L.J. 95
(1993). This outdated case demonstrates how far society has come in
recognizing female sexual agency.
33
Id.
34
Morosco, The Prosecution and Defense of Sex Crimes, Treatise
(2011). “Ending and Defending Against HIV Criminalization: State
and Federal Laws and Prosecutions, Vol.1, CHLP's Positive Justice
Project, First Edition, Fall 2010,” HIV Center for Law and Policy,
Nov. 17, 2010. http://hivlawandpolicy.org/resources/view/564.
“Jody B. Gabel, Liability For “Knowing” Transmission Of HIV: The
Evolution Of A Duty To Disclose, 21 Fla. St. U.L. Rev. 981 (1994).
“Additionally, the defendant sought a reversal of his assault
conviction because he wore a condom during intercourse and failed
to ejaculate. However, the victim testified that she tested HIV-
positive six months after having intercourse with the defendant,
which raised the issue of whether one sexual encounter with an
infected individual wearing a condom could result in transmission of
the virus. Medical expert testimony offered on this issue established
the possibility of HIV transmission in pre-ejaculation fluid by an
analogy to the recognized risk of pregnancy when the penis is
withdrawn prior to actual ejaculation. The testimony also showed that
a study of couples who used condoms over a two-year period resulted
in pregnancies in 5 to 15% of the women involved. Based on this
testimony, the court concluded that the defendant knew he was HIV-
positive, that sexual intercourse was a mode of transmission, and that
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HIV is a criminal act in the majority of states, and
the intentional transmission of any disease could
amount to battery, then why would the law stop
protecting women at diseases and not categorize all
unwanted insemination as sexual assault?
35

A woman should not have to request that a
man withdraws before ejaculation.
36
Because the
purpose of semen is to facilitate reproduction,
unless the woman has overtly consented to
impregnation, or the attempt, then a man should be
presumed by law to lack the consent to ejaculate
inside of a woman.
37
A pregnancy, which must be
terminated or born, results in serious trauma to the
body no matter which way the woman chooses.
38

The law should favor women’s reproductive rights
                                                                                                       
a condom could not absolutely prevent infection of his sexual
partners. Accordingly, the court affirmed the defendant's conviction
And Subsequent Discharge.” Id. at 997. “Similarly, defenses such as
withdrawal prior to ejaculation, or lack of medical evidence to
support the likelihood of transmission by the means employed, are
unlikely to prevail because the elements of knowledge and prohibited
conduct are defined by the statute rather than by the probability of
transmission.” Id. at 1011.
35
 Id. 
36
Supra note 1.
37
Id.
38
Id.
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by protecting them from sexual assault that occurs
when men try to impregnate them against their
consent.
39

The presumption that a man inseminated a
woman against her consent could be overcome by
the defense of consent regardless of whether
reproduction was possible, i.e. impeded by sterility
or the use of birth control. It is the consent of an
additional, inseminating sex act that is relevant, not
the outcome.
40
Analogously, no court would judge a
rapist by whether he had the initial consent to
                                                            
39
Supra note 5.
40
Morosco, The Prosecution and Defense of Sex Crimes, Treatise
(2011). Mark Kelman, Thinking About Sexual ConsentConsent to
Sexual Relations. By Alan Wertheimer. Cambridge: Cambridge
University Press, 2003, 58 Stan. L. Rev. 935, 964, n. 61 (2005). “It is
especially peculiar that Wertheimer so blithely buys into the idea that
women would not develop “excess” revulsion (beyond that needed to
protect reproductive choice) when he simultaneously blithely accepts
(and must accept, given the data) that men have “excess” desire for
nonconsensual sex from a reproductive vantage point. One-third of
rapes are of women of nonreproductive age, twenty percent do not
involve vaginal penetration, and fifty percent do not involve
ejaculation in the vagina. See Coyne & Berry, supra note 56, at 121.
Plainly, the data on nonreproductive male sexual coercion cast doubt
on a very finely grained modular view of male sexual desire (and
even more on an even more finely grained disposition to rape when
frustrated in one's desire to reproduce); it is incumbent on
Wertheimer to explain why he thinks that scientists suspicious of the
unexplained move from extreme modularity in women to relative
nonmodularity in men on this issue must be motivated by ideology
rather than reason.” Id.
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engage in foreplay with his victim, or whether he
actually impregnated or transferred a disease to the
victim.
41
Here, the standard would be whether the
woman specifically consented to being inseminated.

IV. GLOBAL


Society has permitted men and women to
associate sex, and especially the conclusion of sex,
with male ejaculation.
42
This fallacy has led many
people to assume that a man has to ejaculate in
order for the sex act to be complete.
43
This is
                                                            
41
Id.
42
The association is so deep that even feminist organizations like
Planned Parenthood create inferences about it. Their website
describes the pull out method as coitus interuptus. Planned
Parenthood, Pull Out Method (last visited Oct. 13, 2011)
http://www.plannedparenthood.org/health-topics/birth-
control/withdrawal-pull-out-method-4218.htm. Though “coitus
interuptus” is commonly used to describe the pull out method,
“coitus” means “physical union of male and female genitalia
accompanied by rhythmic movements.” Merriam Webster Online:
Coitus (searched on Oct. 21, 2011) http://www.merriam-
webster.com/dictionary/coitus. “Coitus interuptus,” thus,
demonstrates that the concept of male ejaculation is
sociolinguistically tied into the concept external, physical sex for
both males and females.
43
Id. A reference to this belief occurs on the adult cartoon, South
Park. In Season 4, Episode 9, Eric Cartman recites “It’s a man's
obligation to stick his boneration in a woman’s separation; this sort of
penetration will increase the population of the younger generation.”
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untrue.
44
Men who are educated about tantric sex or
the rhythm method understand very well that
ejaculating is a choice that revolves around will
power, timing, self-control, and sexual agency.
45

Every person could be resocialized to understand
that sex and male ejaculation are distinct and
separate sex acts.
46

Beyond economic classification, national
identity,
47
religion, or race, education and
                                                                                                       
The children recite this mantra as a substitute for prayers during
church.
44
Supra note 42.
45
Supra note 42. Dr. Lenore Walker, Comments Made in Response
to My Query During the Course “Gender and Violence” offered
through Nova Southeastern University on Sep. 28, 2011. There may
be emotional or physical diseases that would reduce a man’s ability
to effectively control himself. We cannot make laws to satisfy the
minority of people. Laws can preclude some people from engaging in
activities if their infirmities or disabilities could be a danger to
society. Just as driving requires sight, having sex without a condom
would require the man’s ability to control ejaculation. Many who
know of Tantra, but participate in a male-ejaculation-centered view
of intercourse, will acknowledge the fact that through Tantra men can
separate orgasm and ejaculation, yet these people may disparage the
practice. See e.g. Sari Locker, The Complete Idiot's Guide to
Amazing Sex (Alpha, 2005). However difficult, the challenge is to
physiologically resocialize men beginning with the education. See
generally, Michelle J. Anderson, Sex Education and Rape, 17 Mich.
J. Gender & L. 83, 102 (2010).
46
Id.
47
“It's Not Rape If He Wears a Condom, Guizhou Victim Told,”
WatchChinaTimes Jul. 15, 2011,
http://www.wantchinatimes.com/news-subclass-
cnt.aspx?id=20110715000085&cid=1103. “Zhou decided to report
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socialization by a patriarchal community are the
greatest predictors of whether men and women
abide by a woman’s right to consent to
insemination.
48
Kofi Boakye argued that the
stratification of social roles contributes to the
control of and domination of women.
49
In Boakye’s
study, more than race, income, or religion, sex
scripts correlated to intimate partner violence (IPV),
which includes sexual assault.
50
Rape-myths in
Ghana, for example, encourage and justify sexual
coercion, trivialize sexual violence, and demean and
                                                                                                       
the case to the police on May 19, after which officers and a forensics
team investigated Wang's bedroom. A police officer said a used
condom was found in the backyard of the bureau. Toilet paper and
bedsheets were also taken for a lab test, which indicated that Wang
did have a sexual intercourse with Zhou, the police confirmed.
However, then halted the investigation on the grounds of lack of
evidence. “The inspector told me that wearing a condom does not
constitute a sexual assault,” Zhou Qin said. The teacher recalled that
the inspector, Zhong Xiancong, was also at the banquet on the day
she was raped and was among the men she had toasted. Zhong also
told Zhou, “The entire thing is your fault. Do not make it big. For the
sake of your reputation, I will keep it a secret for you.” The teacher
refused to drop the charges however and finally on Wednesday the
police agreed to arrest Wang after further investigation.”
48
Kofi E. Boakye, Attitudes toward Rape and Victims of Rape: A
Test of the Feminist Theory in Ghana. 24 J. Interpersonal Violence
10 (2009).
49
Id.
50
Id.
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devalue women.
51
These beliefs contribute to sexual
assault.
52
These researchers also argued that these
beliefs are so pervasive that, often, they are not
questioned or recognized, and essentially underlie
every relationship between a man and a woman.
53

Within Latin American culture, reproductive
coercion has become pervasive, and it is often
associated with intimate partner violence.
54
The risk
for unwanted pregnancy is doubled among women
who experience intimate partner violence and
reproductive coercion.
55
Reproductive coercion
includes prophylactic sabotage, threats, orders to
conceive, or other intentional acts of causing a
woman to conceive against her will.
56
Researchers
                                                            
51
Id.
52
Id.
53
Id.
54
Elizabeth Miller, Beth Jordan, Rebecca Levenson, & Jay G.
Silverman, Reproductive Coercion: Connecting the Dots Between
Partner Violence and Unintended Pregnancy, 83 Contraception J. 274
(2010). http://www.arhp.org/publications-and-
resources/contraception-journal/june-2010 citing Yoland R. Davila &
Margaret H. Brackley, Mexican and Mexican American Women in a
Battered Women's Shelter: Barriers to Condom Negotiation for
HIV/AIDS Prevention. 20 Issues Mental Health Nursing 333 (1999).
Corene T. Kendrick, The Illegality of Abortion in Mexico, 39 Stan. J
Int'l L. 125, 149 (2003). 
55
Id. 
56
Id.
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believe that women in abusive relationships are
more likely to fear the consequences of resisting
their partners’ coercive tactics.
57

In Mexico, the government specifically
permits legal abortions for women who have been
coerced to conceive.
58
Though this exception to
Mexico’s abortion ban is vital to feminist progress,
the institutionalization of patriarchal attitudes is
evident in that the violated women may take it upon
themselves to remedy the abuse by risking injury or
discomfort, from their husbands or the procedure.
59

The law does not ban nonconsensual insemination
or punish the coercion.
60
Every time a woman is
threatened or coerced into accepting her partner’s
ejaculation, the event is legal. The government
simply dampens men’s incentives to engage in
reproductive coercion by giving women the option
to resist coerced impregnation.
                                                            
57
Id.
58
Id.
59
Id.
60
Id.
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In studies where a variety of distinct
subcultures were cross-compared, it could be
determined that patriarchal values were responsible
for IPV in the form of reproductive coercion despite
cultural differences.
61
Henk Boer and M. Tshilidzi
Mashamba studied a variety of groups in South
Africa.
62
The study was comprised of people whose
main mother tongues were Tsivenda (47%), Sepedi
(26%), Xitsonga (22%), Setswana (2%), Siswati
(2%), Isizulu (1%) or other (2%).
63
Participants
belonged to a variety of religions, including
Apostolic Church (15%), Zion Christian Church
(15%), Dutch Reformed Church (8%), Roman
Catholic Church (6%), Presbyterian Church (5%)
and traditional African religion (5%), while 32%
belonged to various other religions and 8% were not
religious.
64
Among men, condom use intention
highly correlated to attitude, subjective norms,
                                                            
61
Henk Boer & M. Tshilidzi Mashamba, Gender Power Imbalance
and Differential Psychosocial Correlates of Intended Condom Use
Among Male and Female Adolescents From Venda, South Africa, 12
Brit. J. Health Psych., 51, 55-56 (2007).
62
Id.
63
Id.
64
Id.
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perceived behavioral control, vulnerability, and
response-efficacy, which all reflected the patriarchal
values that breed reproductive coercion.
65
Boer and
Mashamba’s study referenced how the same gender
roles were also found in studies of Western
respondents.
66
In men, unlike in women, Boer and
Mashamba’s study showed that intended condom
use was neither highly correlated with self-efficacy,
nor was past condom use behavior highly correlated
to any of the social cognitions.
67
Among women,
condom use intention highly correlated to attitude,
subjective norms, vulnerability, response-efficacy
and self-efficacy.
68
Though intended condom use
was not highly correlated with perceived behavioral
control among women, past condom use behavior
was strongly related to intention and self-efficacy.
69

Extreme differences existed in correlations between
social cognitions of men and women.
70

                                                            
65
Id.
66
Supra note 38; Id.
67
Id.
68
Id.
69
Id.
70
Id.
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Compare that study to the correlation
between condom use and IPV in New York:

Intimate partner violence
victimization has been linked to
sexual HIV risk behavior among
heterosexual women. The unique
role of perpetration of intimate
partner violence (IPV) in sexual risk
behavior among men has not been
studied as well. Based on interviews
with 518 heterosexual men recruited
via street-intercept between 2005 and
2007 in New York City, we assessed
the relationship between perpetration
of IPV against a main female partner
and inconsistent condom use with
that same partner, while controlling
for condom use-related factors.
Multivariate logistic regression
revealed that men who perpetrated
physical IPV were half as likely to
report consistent condom use as
compared with men who did not use
violence, while controlling for
sociodemographic, condom use-
related and other factors. Physical
IPV perpetration by heterosexual
men makes an independent
contribution to consistent condom
use. Designing interventions for
heterosexual men that
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simultaneously address both IPV and
sexual risk behaviors is critical.
71


These studies link patriarchal attitudes with IPV,
and nonuse of condoms. From a criminological
perspective, does unprotected sex imply consent to
inseminate? No.
72
Only explicit consent does.
73
It
seems that from a criminological perspective
nonuse of condoms problematically relates to the
very issue at hand, a lack of concern for female
sexual agency. It should be presumed within the law
that consent for insemination was not given, unless
it can be proven otherwise. Unprotected sex could
be used as one piece of evidence, but the burden of
proof that the victim did not consent to the
                                                            
71
V. Frye, D. Ompad, C. Chan, B. Koblin, S. Galea, & D. Vlahov,
Intimate Partner Violence Perpetration and Condom Use-Related
Factors: Associations with Heterosexual Men’s Consistent Condom
Use, 15 AIDS and Behavior, 153 (2011).
72
Id. Contra, Amy L. Mcguire, Aids As A Weapon: Criminal
Prosecution Of Hiv Exposure, 36 Hous. L. Rev. 1787, 1806 (1999).
“Some even argue that the use of a condom, regardless of disclosure
or consent, should be a defense to criminal exposure to HIV because
"it is unreasonable to think that individuals are going to abstain from
sex given their infection.”” But see, “[R]egardless of whether
a condom is used because every person has a right to know the
specific risks she takes when she engages in sexual intercourse with
another person.” Id.
73
Cf. supra note 14.
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additional act of insemination should not be placed
on the woman.
74

Even in progressively thinking nations or
environments, the tendency to conflate condom use
with sexual agency or condom use with consent is
still prevalent. Recently, an article discussed a
lecture given by Professor Peng Xiaohui entitled,
“Sex and Interpersonal Relationships” given at the
Normal University in Central China; the article
stated:

[There is a] high incidence of sexual
activity among high school students
in Sweden and [Professor Xiaohui]
claimed that the mothers there would
encourage their daughters to always
have condoms ready. One of the
reasons Swedish moms do this, says
                                                            
74
Id. This is aligned with current STD statutes that punish
nonconsensual transmission of STD’s and developing case law on
reproductive rights. Supra notes 5, 14, 45, 47, 54, & 71. “In the
context of statutory rape, sexual assault, and even contraceptive
fraud, addressing the problem....being open to questioning these cases
and others could serve as a catalyst for rethinking the impact of the
discourses on both men and women. At that point, there would be
space for innovative thinking and a deeper questioning of the...family
law system, questioning that is, in fact, much needed.” Ellen London,
A Critique of the Strict Liability Standard for Determining Child
Support in Cases of Male Victims of Sexual Assault and Statutory
Rape, 152 U. Pa. L. Rev. 1957, 1986 (2004).
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Peng, is that should the girl be forced
into sexual activity against her will,
she would at least be able to hand
over a condom to her molestor [sic]
as a last resort to protect herself
against sexually transmitted
infections. Students at the lecture
were shocked at what they heard.
One male student stood up and
asked, “How should we view this in
China? By handing over a condom,
would the woman not be tacitly
giving her approval to her rapist?”
To which the professor coolly
answered, “I can understand this
student’s worry. I am in full
agreement with what these mothers
in Sweden are doing—not because I
approve of sexual assault but as a
means of self-protection for
women.”
75

 
 
 
 
                                                            
75
 Kenneth Tan, “Professors Views on Condoms, Rape, and Gay
Marriage Kick up Maelstrom of Debate,” Shanhaiist, May 17, 2011,
http://shanghaiist.com/2011/05/17/professors_views_on_condoms_ra
pe_an.php. 
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V. SWEDEN


What does Sweden have to say about sex
acts that are extra-consensual? Generally,
nonconsensual insemination falls into the category
of “sex by surprise” in Sweden.
76
In 2010, a
London court heard the Swedish state explain why
Wikileaks-mastermind Julian Assange should be
extradited for the prosecution of four sex crimes in
violation of Article 3 of Sweden’s criminal code.
77

Assange, an Australian national, was charged with
“sex by surprise.”
78
In the U.S. and Sweden, by
statute, a woman may revoke her consent at any
time during sex.
79
The facts of the cases show that
                                                            
76
Dan Murphy, “Details of Sweden's case against WikiLeaks’ Julian
Assange; Sexual Assault Charges in Sweden Against WikiLeaks
Founder Julian Assange are Feeding Conspiracy Theories and Claims
That He’s Being Framed. What Are the Known Facts?,” The
Christian Science Monitor, Dec. 8, 2010.
77
“Sweden vs. Assange,”
http://www.swedenversusassange.com/Allegations.html (last viewed
on Oct. 15, 2011). This cite contains a link to most documents related
to Sweden’s charge of sex crimes against Julian Assange.
78
Id.
79
Id. Though this is true in American law, it is rarely, if ever, applied
to the proposition that insemination is a separate sex act that should
be presumed to be nonconsensual unless otherwise specified.
Compare supra note 77 with supra note 14.
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two acquaintances made similar claims about
Assange.
80
They claimed that he had sex with them
consensually but that his semen entered their bodies
without consent.
81
Their consent was limited to the
sex act but did not extend to insemination.
82

In one case, Assange’s condom might have
broken under his control.
83
Swedish law does not
justify reproductive coercion by reducing the
offense to a tortious event.
84
They criminalize
reproductive coercion.
85
As U.S. law does not
excuse nonconsensual penetration if undergarments
give way during consensual foreplay, Swedish law
does not excuse “sex by surprise” because a sexual
assailant failed to exhibit the level of sexual agency
that is legally required of him.
86
Even though
millions of people might argue that Assange was
being unfairly persecuted because of his status as a
                                                            
80
Supra note 77.
81
Id.
82
Id.
83
Id.
84
Id.; Contra Morosco, The Prosecution and Defense of Sex Crimes,
Treatise (2011).
85
Id.
86
Id.
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political dissident, the allegations highlight the
importance of consent for each part of a sexual
encounter.
87

The first of Assange’s acquaintances claims
that she consented to sex, though her consent was
coerced.
88
She claimed that Assange tampered with
the condom between when he agreed to wear a
condom and when he removed his penis from her
vagina after ejaculating inside of the condom.
89
She
said that the juices flowing out of her were his, not
hers.
90


Anna notices after a while that
Assange withdraws from her to fix
the condom. Judging from the sound,
it sounded to Anna like Assange took
the condom off. He entered her again
and continued the act. Anna again
checked his penis with her hand and
again felt the edge of the condom
where it should be and so let the sex
continue.

                                                            
87
Id.
88
Id.
89
Id.
90
“The Police Statement of Anna Ardin,” Rixstep, (last viewed on
Oct. 15, 2011) http://rixstep.com/1/20110204,02.shtml.
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After a while Assange
ejaculates inside her and thereafter
withdraws. Anna saw that the
condom didn’t have semen in it
when Assange took it off. When
Anna began moving her body she
noticed how things were running out
of her vagina. Anna understood
rather quickly that it must be
Assange’s semen. She pointed this
out for Assange but he denied this
and told her it was she who was wet
with her own juices. Anna is
convinced that Assange, when he
withdrew from her the first time,
[had] deliberately broken the
condom at the tip and thereafter
continued the sex with the resulting
ejaculation.
91


The second acquaintance met Assange as a
public figure.
92
She had seen him in the press and
wanted to meet him.
93
On the night they had sex,
she had struggled to get Assange to wear a condom
through the first two or three times that they had
                                                            
91
Id.
92
“The Police Statement of Sofia Wilén,” Rixstep, (last viewed on
Oct. 15, 2011) http://rixstep.com/1/20110131,00.shtml.
93
Id.
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sex.
94
He complied.
95
During one of those times,
Assange only put the condom over the head of his
penis.
96
The police report does not indicate why the
acquaintance wanted Assange to wear a condom.
97

The fact that on one instance, he only wore the
condom over the tip of his penis might show that
the acquaintance wanted to protect herself from his
semen, not from his penis skin.
98
This distinction is
key because it could suggest that this woman was
specifically avoiding semen, not the entire scope of
unprotected sex. The final time that they had sex
she woke up from a nap to the feeling of Assange
penetrating her.
99
In the U.S., this can be a crime.
100

If a woman does not consent to sex while sleeping
then the act is sexual assault, but Sweden takes
consent one step further.
101
In Sweden the woman
has the right to have unprotected sex, but that does
                                                            
94
Id.
95
Id.
96
Id.
97
Id.
98
Id.
99
Id.
100
Id.; Morosco, The Prosecution and Defense of Sex Crimes,
Treatise (2011).
101
Id.
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not equate to her having consented to being
inseminated.
102


They sat on the bed and talked and
he took off her clothes again. They
had sex again and she discovered
he’d put the condom only over the
head of his penis but she let it be.
They fell asleep and she woke by
feeling him penetrate her. She
immediately asked ‘are you wearing
anything’ and he answered ‘you.’
She told him ‘you better not have
HIV’ and he replied ‘of course not’.
She felt it was too late. He was
already inside her and she let him
continue. She couldn’t be bothered
telling him again. She’d been
nagging about condoms all night
long. She’s never had unprotected
sex. He said he wanted to come
inside her, he didn’t say when he’d
done it but he did it. There was a lot
of running out of her afterwards. She
told him what happens if she gets
pregnant. He replied that Sweden
was a good country for raising
children. She told him jokingly that
if she got pregnant then he’d have to
                                                            
102
“The Police Statement of Sofia Wilén,” Rixstep,
http://rixstep.com/1/20110131,00.shtml (last viewed on Oct. 15,
2011). Supra note 5.
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pay her student loans…He also said
that he should always carry abortion
pills that actually were sugar pills.
103


Regardless of whether Assange actually
committed the crimes, the Swedish legal system
state still provides a framework for women who
allege that men inseminated them without
consent.
104
As is typical of the patriarchal press and
police, many were quick to suggest that rather than
persecution or genuine criminal prosecution,
Assange was actually facing a case of lovers
spurned.
105
Some have contrived that because
Assange’s relationship with the women may have
been concurrent, they were jealous and decided to
report the incidents as an act of revenge.
106
If a
woman exhibits low sexual agency when there is a
great power disadvantage, then sometimes people
                                                            
103
“The Police Statement of Sofia Wilén,” Rixstep,
http://rixstep.com/1/20110131,00.shtml (last viewed on Oct. 15,
2011).
104
“Assange in Sweden,” Rixstep,
http://rixstep.com/1/20110131,00.shtml (last viewed on Oct. 15,
2011).
105
Id.
106
Id.
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assume that her real motivation for reporting the
crime later is that she is jealous or covetous of the
man’s sexual agency.
107
Irrespective of the media’s
sexist suspicions about women, Sweden’s laws
protect people from the spread of disease, unwanted
pregnancy, and power inequalities by making
insemination an event that requires consent.
108

Regardless of the media’s perception of the
application of these laws, it is clear that women
need these laws to curb the expectation that women
should be subject to unwanted insemination as the
natural consequence of consenting to (or forcefully)
being penetrated without, a condom.
109

                                                            
107
Andrea Ashworth offering her analysis: “The description provided
in the EAW does not permit an inference that there was a lack
of consent by the complainant, nor that the respondent did not
reasonably believe the complainant to be consenting.”
http://www.swedenversusassange.com/Allegations.html
108
Nitasha Tiku, “STDs, Broken Condoms, and ‘Sex by Surprise’: A
Primer on the Charges Against Assange, NY,” Dec. 7,
2010, http://nymag.com/daily/intel/2010/12/crayfish_parties_and_bro
ken_co.html. “A research project last year funded by the European
Commission found that Sweden leads Europe in reports of rape, with
46.5 per every 100,000 citizens…” Hopefully, this statistic indicates
that women are more aggressively pursuing justice for the type of
acts that other women in Europe are accustomed to overlooking.
109
“Assange in Sweden,” Rixstep,
http://rixstep.com/1/20110131,00.shtml (last viewed on Oct. 21,
2011). Supra notes 5 & 42.
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CONCLUSION


Semen’s main purpose is to impregnate.
110
Before
reproductive freedoms supplied women with
increased female sexual agency, women were
controlled by the patriarchal definition of sex.
111

This definition included a male ejaculation.
112
Now,
women are free to have consensual non-procreative
sex with men.
113
This right should not be impeded
by whether women successfully convince men to
use condoms.
114
In U.S., as much as in Asian, Latin,
European, or African populations, sexual agency
correlates with whether a woman will request that a
man wears a condom, and partners’ patriarchal
socializations will determine whether he does.
115
In
consideration of the historic and contemporary
imbalance of sexual agency between men and
women, the correlation between violence and
                                                            
110
Supra note 1.
111
See generally id, supra notes 5, 14, 45, 47, 54, & 71.
112
Id.
113
Id.
114
Id.
115
Supra notes 37, 38, & 43.
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nonconsensual insemination, and the fact that it is
the men who ejaculate and the women who suffer
physical and emotional harm, it is men who should
be responsible for their ejaculatory fluids by
whatever means.
116
As we become a more
progressive society, it should be legally ordained for
a woman to have the reproductive right to separate
pleasure from reproduction without blame or
burden.
117
An example of this policy exists in
Sweden.
118
In 2010, the majority of the world was
introduced to this policy due to the indictment of
Julian Assange for several sex crimes relating to
nonconsensual insemination of two women.
119

Failing to achieve consent to inseminate a woman is
a form of sexual assault in Sweden and should be in
the U.S. as well.
120
In order to protect women’s
sexual agency, the U.S. needs to follow Sweden’s
lead and criminalize nonconsensual insemination.
                                                            
116
Supra note 90.
117
Supra notes 5, 14, 45, 47, 54, & 71.
118
Supra notes 69, 77, & 90.
119
Id.
120
See generally Id.& supra notes 5, 14, 45, 47, 54, & 71. 

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