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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 didnt want you to cum inside of me. I cant
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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II. SEMEN
What does semen do?
1
The main purpose of
semen is to carry sperm from a mans testicles,
where it is produced, into a womans 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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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 STDs through
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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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27
Id.
28
Id.
29
Id.
30
Id.
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31
Id.
32
Carla M. da Luz & Pamela C. Weckerly, The Texas Condom-Rape
Case: Caution Construed as Consent, 3 UCLA Womens 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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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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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 Its a man's
obligation to stick his boneration in a womans 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
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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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57
Id.
58
Id.
59
Id.
60
Id.
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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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65
Id.
66
Supra note 38; Id.
67
Id.
68
Id.
69
Id.
70
Id.
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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 Mens 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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74
Id. This is aligned with current STD statutes that punish
nonconsensual transmission of STDs 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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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 Swedens 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 Hes 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 Swedens 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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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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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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91
Id.
92
The Police Statement of Sofia Wiln, 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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102
The Police Statement of Sofia Wiln, Rixstep,
http://rixstep.com/1/20110131,00.shtml (last viewed on Oct. 15,
2011). Supra note 5.
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103
The Police Statement of Sofia Wiln, 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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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
Semens 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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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.