Was The Jury In “Unwanted” Fellatio Case Wrong To Rule In Favor Of The BJ Giver?

A straight man in New Zealand testified that he received unwanted fellatio from a gay man after consuming a dozen alcoholic beverages in a six-hour period. The gay man testified that the straight man had asked him for the blow job then changed his mind five minutes into it. Expert witnesses claimed the straight man, who had a history of blacking out while drunk, likely suffered from “alcohol-induced amnesia” and did not remember making the request. After hearing two days of testimony and 45 minutes of deliberation, the jury ruled in favor of the gay man.

No, this was not a recap of last week’s episode of Law & Order:SVU. This actually happened in a Christchurch, NZ courtroom earlier this week.

Since posting the story Wednesday morning, Queerty readers on Facebook have been divided over the verdict. Many said the jury was right by ruling in favor of the gay man, but some felt the straight man was a victim.

According to part 4 of section 128A of New Zealand’s Crimes Act of 1961, “A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.”

So was the jury wrong to rule in favor of the man who performed the blowjob? Sound off in the comments section below.

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  • hex0

    What the jury made the right decision, how can a man be forced to receive a BJ? This “straight” guy is just embarrassed about what happened. No evidence of any wrong doing.

  • Dakotahgeo

    What is the receiver complaining about? He tried to set up the guy and it backfired. He may want to cut way down on his alcohol intake. Methinks he has more than a drinking problem!

  • Justin

    It doesn’t matter if you guys think he wanted it or not the fact is 1) a person cannot consent to sexual intercourse of any kind under while intoxicated under New Zealand Law and 2) he guy changed his mind part way in, even the gay guy admits that. Consent is not a one time thing that is never ending. A person always has the right to change their mind and not give consent anymore which clearly this guy did if even the perpetrator admitted it.

    The fact that you guys are sticking up for the gay man or that this is even a debate is symbolic of a greater rape culture that views sexual assault victims as not a victim but as the cause and the gay community is not immune to that culture.

    Also the fact that you guys claim that this is gay even though he identifies as straight is just your guys fantasies. That is no different than saying a man or child who is sexually assaulted is gay because of it. In fact that’s exactly what you’re saying.

    Also sexual identity is the not the same thing as what one does in the bedroom. It is an identity and the two are separate. Their are straight men who have sex with men and identify as straight and it doesn’t invalidate their identity. But I’m sure that’s above the heads of most people who will read this.

  • Dakotahgeo

    @Justin: You’re arguments are sleazy at best. Don’t abuse alcohol, and don’t consent… that’s not too hard to figure out. Just say no, lol.

  • bafendo

    Oh please, drunk guys know what they’re doing. I’ve had a few cute/hot closeted guys who once drunk and/or high made moves on me. Exposing themselves, wanting oral. Same thing here. The dude knew what he wanted and probably wasn’t drunk enough to enjoy it. Probably embarrassed that others found out, made up this story about being forced into it to hide his sexuality.

  • Justin

    @Dakotahgeo: how my arguments are sleazy is beyond me, at least argue with an actual argument and not an insult. And he didn’t consent because 1) he couldn’t consent while intoxicated and 2) he rescinded his original “consent”

  • Justin

    @bafendo: yup it’s the victims fault, as society always says. You are basically saying that a man cannot be sexually assaulted because they always want it. That is ridiculous.

  • Thomathy

    Justin, your point number 1 is true and can be tested in appeal. On point number 2, however, yeah, the guy changed his mind. And when consent was rescinded, the guy giving the blow job stopped. That is not a fact that is in dispute. You can’t really make the argument that consent was ignored or wasn’t gotten when he stopped what he was doing when asked. It’s entirely possible, even likely, that the guy really believed that he had consent, even if he didn’t understand that the consent may not have been lawful.

    You bring up rape culture, and I agree that it’s relevant, but I believe the more accurate way to frame this within the perspective of rape culture would be to point to the lack of education around what constitutes consent and under what circumstances a person cannot lawfully consent.

    If the Crown appeals, we will find out if, in fact, the man was in such a state as to not have been able to give lawful consent.

  • rextrek

    you cant get hard if you’re NOT turned on – period…the guy is a closet case

  • Thomathy

    rextrek, that’s just not true. It’s also irrelevant.

  • bafendo

    @rextrek: Exactly!

  • Ben Dover

    1) Blowing drunk guys is not much fun. They take forever! I don’t advise it.

    2) The “consent” language in the NZ law seems pretty clear. The jury evidently didn’t take the event seriously, but the sucker should have stopped.

    3) Didn’t God destroy that town in an earthquake 3 years ago? This must be why!

  • bafendo

    @Ben Dover: “Blowing drunk guys is not much fun. They take forever!” They don’t take forever for me. hehe

  • MCHG

    first of all, you can most certainly become aroused during rape. it does not justify having non consensual sex with someone. I don’t get why people cannot grasp the simple fact that there is zero excuse for raping someone. someone who’s been drinking cannot consent because their judgement is impaired. if this were about a man forcibly having oral sex with a woman, there would be no doubt that it was rape. the fetishizing of the “drunk straight guy who goes gay after a few beers” is particularly sad for a multitude of reasons, but the worse one has to be that it allows predators to take advantage of guys because there’s an assumption that because someone is too fucked up to say no at the precise moment, that when they wake up they’ll be oh sooo thankful of the gay guy who blew him instead of calling him a cab and sending him home.

  • bafendo

    @MCHG: We don’t know for sure that the drunk guy didn’t initiate it. Maybe he made the first move and told the guy to give him oral. Ever think of that? Quit victimizing the guy just because he was a little drunk.

  • BrianZ

    @Justin: I have to disagree. The statute states ” is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity” which does not, in any way, indicate that being drunk is in and of itself precludes being able to consent. Read it again, word for word.

    If the man was passed out when oral sex was initiated then it was rape. If he gave consent and then blacked out, or changed his mind, there was no sexual assault.

    I don’t believe we know who was telling the truth so we can only trust that the jury is correct.

  • DuMaurier

    @bafendo: Of course, and just from what I’ve read there was enough ambiguity for the jury to acquit. But although this article doesn’t make it clear, the allegation is that the act was initiated when the “drunk guy” was passed out (the alcohol issue didn’t relate to consent, but to whether he was remembering correctly)

    There’s no question you can’t consent if you’re not awake, and although I think the jury made the right decision, it seems like there’s an underlying message from some of the commenters here along the lines of “What’s the big deal, it’s just a blow job”; and separate from the facts of THIS case, that’s pretty contemptible.

  • hex0

    1. If everybody who had sex drunk were a rapist there would be a hell of a lot more people in jail
    2. What if they’re both drunk, are they both rapists?
    3. The gay guy stopped after the “straight” man requested him to, no evidence of rape whatsoever.

  • akingsfan

    Who cares? It’s a f*cking blow job. If the straight dude doesn’t want one, I’ll gladly take one!

  • Teeth

    Rape is rape. This was rape. If your female friend who has always wanted you took advantage of you when you were drunk, you would be pissed. And as far as getting hard when not aroused– that’s the kind of language child molesters use. He must have wanted it, he was able to get hard. It’s offensive.

  • Large Marge

    Did he change his mind before or after he blew his load?

  • mikeg

    @DuMaurier: I don’t think the allegation is that he was passed out. In fact they clearly say “blacked out” as in he was conscious but just doesn’t remember anything.
    Anyway, I agree, the jury got it right. It seems like consent was given, and when consent was rescinded the guy stopped the blowjob. If anything this is regret, not rape.

  • hyhybt

    I’m just curious why comments weren’t allowed on the first article.

    Logically, someone who is that drunk cannot give meaningful consent, because they’re in no condition to understand and think.

  • hyhybt

    @Lvng1tor: WHY

  • Sansacro

    @Teeth: Tautological and reductive reasoning at best. Fact is that “rape” is not always clearly defined by everyone in the same way. I was drunk (but conscious), and a friend felt me up, and started to blow and rim me. Did I feel raped, no. I forgot it as soon as it ended. (He came; I didn’t.) Someone else may have felt raped though. An older friend, once made dinner for me, then aggressively tried to blow me. I let him. I also let it go, but avoided private dinners going forward. However, a pick up I met once tried to screw me without a condom, and I fought back. Had he penetrated me, I would have felt raped, but the personal duress would mostly because of the violence and health risks associated with that unwanted violation. Personally, I don’t find nonviolent unwanted sexual encounters traumatizing.

    Finally, someone who is drunk (or not drunk) and blown may or may not be erect. I have been semi hard or flaccid during oral sex (for various reasons). But I was still blown.

  • vive

    @Justin, @Teeth, so basically you require everyone to be able to read minds in order to know whether yes means yes.

    If having sex under the influence is rape, then we are all rapists, and we are all rape victims.

    There are people out there who were REALLY raped. How about we stop watering down the definition to the point of making a joke of rape.

  • stranded

    @vive: here, here!

  • Heyguy

    I read another than queerty ( due some articles here is seemly biased and bit exaggerate) It indicated drunkard is approached him first and requested him to suck him off if it is truth then Jury is right in my book. But common sense- don’t ever go for any guys especially straight anything sexual during they’re under of influence even only it came from 3 cups of beers. Law in America can be brutally harsh more than New Zealand. Just saying.

  • tdx3fan

    According to the laws of my state, they absolutely made the wrong decision. What is worse is, that if this had been a woman that received unwanted and not clearly consented for oral sex the guy would be in jail and registered as a sex offender.

    What is at issue here in this case is the very essence of date rape. If someone is so intoxicated that they cannot give consent, then it is against the law to have sexual intercourse with them (especially if you believe they would not consent if they were not intoxicated).

    I don’t think I really want to meet the troll that is so lonely that he takes advantage of a drunk straight guy just to perform a blow job.

  • tdx3fan

    @Dakotahgeo: The law is sleazy? Really!?! His arguments were extremely valid. Just because you don’t like them because he didn’t automatically stand up for the gay guy does not make them sleazy. Gay guys can be actual scum too.

    You want to know what is sleazy? Taking advantage of a drunk guy in the back of your car. It does not get much more sleazy than that.

    I prefer my men to be very willing, ready and eager.

  • tdx3fan

    @bafendo: She knew she wanted me… honest, it had nothing to do with the 10 drinks I bought her. You sound like a delusional straight date rapist. Way to go!

  • tdx3fan

    @Thomathy: Learn the justice system… you cannot appeal a not guilty verdict. That is the very basis of double jeopardy.

  • tdx3fan

    @rextrek: Being hard is NOT consent. The guy was so out of his mind he had no idea what was going on and someone that knew this took advantage of it. Now, you are all flocking around this sleeze because he’s gay. If this was a straight guy taking advantage of a woman, it would be very interesting to see how you all responded.

  • tdx3fan

    @bafendo: Are you seriously bragging that the only way you can get sex is to get someone drunk first… that is not exactly something to brag about, but go you… oh wait, on second thought, stop you…. that behavior is pretty freaking disgusting.

  • tdx3fan

    @bafendo: He could have said… straight out (pun kind of attended)…

    “Damn dude, I’m so horny, I want you to suck me…”

    That still does not imply consent if he is so drunk or out of his mind that he has no clue what he is saying. When you are so out of your mind you have no clue what you are doing you cannot give consent. That is the law. That law was put in place to protect females from date rape. Without it, they would have no recourse and every guy could just say… “she wanted it.” You are basically using the “he wanted it” argument, and its a disgusting argument.

    And you are only doing this because the guy doing the rape was gay.

  • jasentylar

    BTW, the picture of this article is Corbin Fisher’s Sean who is deceased. Classless to use it, Queerty :(

  • WT-NZ

    You guys actually don’t have all the information. There were also txt messages that supported the defendants version of events. Just sayin.

  • hyhybt

    @WT-NZ: That doesn’t help any. The defendant’s version is still rape, because someone so drunk he’s passing out is incapable of meaningful consent.

  • WT-NZ

    @hyhybt: Not if said txt messages were flirty or even go so far as to ask for it. The contents of txts weren’t released but stated that they “support the defendants version of events”. That with the defendants insistance that the straight guy did ask for a bj. To some we are getting into murky water but i don’t believe its rape. Just that a drunk curious dude had his inhibitions way down, went there, and had instant regret. From my own experience and talking to friends, iv had sex with “straight” guys and had them regret acting out the fantasy, even heard of them getting agro/violent. It happens. And from what iv read here in NZ, its an almost classic case of this. Have you never woke up to someone after a druunken night out and gone “wtf?”. While regretful i certainly cannot accuse them of rape.

  • hyhybt

    @WT-NZ: Well, no, I haven’t; but then, I don’t drink. Nothing against it, it’s just not something I enjoy.

  • WT-NZ

    @hyhybt: Well thats your choice and nothing wrong with it :) My only point was that were other facts involved and its definately not as clear cut as its being portrayed on here. Like i said. It really does appear to be more a case of a bad experience for both parties, but there was no malicious intent at all.

  • mikeg

    @tdx3fan: You’re assuming he was so drunk and out of his mind that he didn’t know what he was doing. To me that doesn’t seem to be the argument. The argument is that he suffered a blackout, not that he was passed out drunk. The law is to protect drunk people who are so legless that they can’t stand and don’t know who or where they are. In a blackout you still know who and where ou are, you can converse, your brain just stops recording after a certain number of drinks. In that situation it doesn’t seem implausible that the guy could ask for a blowjob. Five minutes later his brain reboots, he realises whats happening and he asks the guy to stop and he does.
    I had a friend who sometimes would blackout, and he would be funny and even eloquent at times. You’d know he’d been drinking sure, but you wouldn’t say he was wasted or incoherent. Yet later he wouldn’t remember a thing that happened. And the guy who got the blowjob has an admitted history of suffering from blackouts. Now, if you know you have a history of blacking out and making bad decisions when you drink and you go out and drink anyway and put yourself in that position how is the onus not on you?

  • Will L

    Alcohol will not make you do something you wouldn’t want to do. It reduces your inhibitions. So the guy wanted a bj. If he later changed his mind, out of decency you stop. (I’ve been in a situation like that before.) I can see that if you went out of your way to make it happen (such as getting a room) THEN he changed his mind, it might be different.

    However, since we didn’t hear the two days of testimony we’ll have to trust the jury on this one. Legally he’s off the hook, but he probably should have stopped. You really shouldn’t take advantage of someone who is impaired.

  • JJ24

    @Will L: HE DID STOP!

  • vive

    How, without being a practicing psychiatrist, are you supposed to know that someone is so drunk that his stared consent is invalid? It is this kind of spurious prosecution that makes young people consider rape to be a joke.

    In my opinion, people decide to get drunk to reduce inhibitions, so the consent for the consequences is often implicit in the decision to get drunk. This is not to say you can have sex with someone who is passed out, but we have all had sex with that person who was under the influence but coherent. Most of us have been that person too. Many of us wouldn’t exist but for sex under the influence.

  • plazaro1

    Many straight men get amnezzia after being w another man… so I think the jurors were right on their sentence. The “straight man” needs to get a life, a real one, deal with his issues and probably he wont even have to finish like the blown lush of the party.


    So this guy didn’t wake up until the deed was well underway? And am guessing he was fully errect?

    Very glad the jury didn’t blow the verdict…………….

  • Ruhlmann

    @Dakotahgeo: How about not taking advantage of a drunk? That in fact is sleazy.

  • Lvng1tor

    @hyhybt: Having had to deal with black out drunks (notice they say black out not pass out)they can seem very coherent. Have you ever talked to a sleep walker. did you always know they were asleep. Also, the “I was drunk I’m not responsible for anything I do while I’m drunk” defense is bull. Some are some aren’t. They texts back up that he was aware what he was doing to a point. You really think this guy is a rapist for giving a bj that after he was told to stop he did? You really think the world to be so black and white? We would all be in jail or have a loved one put away for ever if your world was true. Plus you only have the dude who got the bj’s word for it that he didn’t want it to happen and didn’t realize it was happening. Poor judgement (taste) on the givers side…sure…rape…come on. Sex gone wrong….Pull up your big boy pants and see a therapist for your black out drinking and why you wanted so bad to be with a man not ruin some other guys life cause you can’t face yours.

  • fredo777

    I have no idea why some of you are rushing to call this rape or the blower sleazy and the blowee a victim. All things considered, nothing about this case sounds like a valid case for claiming rape. When asked to stop, the blower *did* stop + as has already been stated, both parties might have been drunk. So, that means the gay guy is a rapist just because the poor, innocent straight guy had been drinking also? Please. Also, as has been stated, blacked out does not mean passed out.

  • StudioTodd

    @Ruhlmann: How is giving in to a man’s repeated and insistent requests for a blow job “taking advantage” of someone?

  • MuziqMatriX

    No no no. Sure, the concept is about personal jurisdiction, and you are ALWAYS the controller of your own being, and no one else can do that for you. Was this a mistake? NO! If the jurors were anything like me, then they had WAY more questions than answers. Yes, the law in NZ says a yes under the influence cannot be construed as consent. All the same, explain how the straight man ended up in the back seat. You don’t under any reasonable circumstances get in the back seat when someone drives you home (unless there’s more than 2 people in the car). It left doubts about the honesty of his story. And how do you let someone blow you for 5 minutes before you say “no, I’m straight”? Again doubts. And then there’s the bigger issue. If you have a long and documented history of excessive drunkenness, AND a well documented history of questionable behavior under influence, then instead of blaming someone who apparently was trying to do you a favor, you should enroll your DRUNK ASS in rehab!!!!!!!!!!!!!!!!!

    These are facts in this case, and serious questions I had reading this when the story first broke. I have posted something about this before. This seems like gay panic after the act (which I believe was a complete act and not fellatio interruptus). Now while that might be just my opinion, the fact remains that there was WAY too much about the hetero’s story that just didn’t add up.

    Ok, so since he were the accuser, he had a legal duty to satisfy evidence in his lawsuit. If I were juror, I’d have come to the same conclusion. His story doesn’t add up, he’s still the only one controlling his body (drunk or not) and he was also texting during the incident which demonstrates that control, he cannot prove the gay man intended him any harm, and all he had to do was say NO, which he did and the man complied AS HE REQUESTED, so any fault that may belong to the gay man is sufficed by his compliance. It gets even worse when he says these incidents occurred, can describe these occurrences, and can apparently get the facts right for an incident he claims not to remember – cuz not remembering is sort of the main effect of “blackout”. So the requirement for rape is not met under this NZ law. The fact that after the incident he chose to see if he could embarrass the gay man and have it stick – just because he feared others thought him gay, made worse by him bringing his girlfriend to court – means he wasted the court’s time. Instead of ruling for the accused, I would have recommended a judgment against the accuser to undergo rehab. If there was one shred of evidence that the gay man refused to comply, the jury would have called it rape and justifiably so!

  • MuziqMatriX

    This is legal wrangling at its highest. It doesn’t say that consent under influence is not consent, rather that consent cannot be construed as honest and legally binding ….if you are too drunk to make the decision! But he was capable. And then he withdrew consent, and the act terminated. Sounds like the act of consenting to me! And then compliance to the withdrawal of consent. To base the case on the expert testimony of his doctor that he experiences gaps of memory loss is testimony in support of him going to rehab, and not testimony to convict a man for undesirable sex acts. His lawyer could not have had any confidence in this defense at all. This straight man has to be rich, otherwise the lawyer had an ethical duty to inform him if he feels unable to argue on his behalf. I wouldn’t change anything about this ruling except ordering him to rehab. The fact that the case even exists, given the circumstances, speaks to the mentality of “I’ll get my way or I’ll sue you”, the basis of all frivolous lawsuits.

  • PolitelyOpinionated

    @Justin: I agree wholeheartedly with Justin and hyhybt above, and am disappointed with the nature of many of the responses in this comment thread. Though I’m an occasional reader of this site–I even assign articles from Queerty to my undergraduate students–the Is it/Or isn’t it? nonchalance of this article, linked to by http://www.huffingtonpost.com/larry-womack/rape-culture-pervades-gay-culture-too_b_5771738.html?utm_hp_ref=gay-voices inspired me to open an account here to respond. This appalling event sounds like the legal definition of rape, or at very least creepy predation. Acts like this–and their justification by many readers here–are flat-out wrong and serve to perpetuate anti-LGBT stereotypes that hurt so many of us.

    I’m disabling the links to this site from my class’s assigned readings, and that’s too bad.

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