Was this legally rape?

[misty75]

please could someone with knowledge of sexual offences legislation and caselaw help?

I start a sexual relationship with a man and make it clear that I will only have unprotected sex once we both have clear std test results. We use condoms and get the std tests done. While waiting for the test results we are having sex with a condom, but the condom breaks. He realises it has broken but chooses not to tell me, by his own admission, because he does not want to have to stop and put a new one on. I have no idea it has broken. He carries on for some time until he has come inside me, and only then tells me what he has done.

The police have told me that this is not rape or even sexual assault, because I consented to sex with him, and because I did not withdraw my consent during the act. I did not withdraw consent because I did not know the condom had broken. In my view my consent lasted only as long as the condom was intact, and from the moment he realised it had broken and chose to carry on without telling me, there was no consent and no reasonable belief on his part that I was consenting.

Please could you help with this? Is there any caselaw that relates to this situation?
Many thanks.

[Glampinglove]

It's not rape, he should of told you about the broken condom when he knew about it.

[vettles]

The "Conditional Consent" section in this article mentions some cases:

www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/consent/#a07

[thonghangingontheline]

Going from Vettles link

"It would plainly be open to a jury to hold that if AA had made clear that she would only consent to sexual intercourse if Mr Assange used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom ..... His conduct in having sexual intercourse without a condom in circumstances where she had made clear she would only have sexual intercourse if he used a condom would therefore amount to an offence under the Sexual Offences Act 2003....""

[WeAreEternal]

It would be classed as a sexual offence, but proving it would be difficult as he could claim he was unaware the condom had broken, or that it broke after or during 'climax'.
Establishing when it broke and when he noticed but chose to continue regardless would be impossible to determine.

I think the best thing you can do is cut all contact and never have sex with this man again, clearly he is a selfish wanker.

[thonghangingontheline]

but if she gets an STI or pregnant that's fine is it?!

[meditrina]

It's not clear cut: also from the link above:

"In the light of the developing concept of conditional consent and the absence of a clear authority as to how far the concept extends, all proposed decisions in conditional consent cases whether to charge or not - must be referred to the PLA for authorisation."

[misty75]

Thank you very much Vettles, I will read when on break from work.

Weareeternal, thanks, but I have his admission via text that he knew it had broken early on and chose not to tell me because he expected that I would ask him to stop and replace it.

Also I'm not after advice on whether a case would be likely to result in a charge/conviction/etc, simply as to whether a crime has taken place or not according to the law, at this stage.

SoonToBeSix pls refrain from victim-blaming judgemental comments on a thread requesting information about the law on this matter. You have no idea whether I have any intention of asking the police to prosecute this man, no idea of the background etc etc. It's nasty to accuse someone who's clearly in an upsetting situation of wanting to ruin lives with no basis.

Thanks everyone, any further info will also be greatly appreciated xx

[misty75]

Weareeternal, thanks, regardless of how difficult it would be to prove, please could you tell me which sexual offence it would be classed as? Thanks x

[specialsubject]

I don't see this as rape, although clearly you should not be having sex with this man again. He obviously wasn't that bothered about risking pregnancy or disease. Doesn't seem he's that interested in you as a person.

Starting a massive legal battle will just waste a lot of money. You can of course ask a man to stop at any time, and if he doesn't that is assault - but you didn't ask him.

there is ALWAYS a risk of condom breakage, and there is ALWAYS a risk of disease unless proven clear. I take it that you went for the morning-after pill?

put it down to a poor choice (with hindsight) and move on.

[meditrina]

She coukdn't ask because she didn't know that that a condition of her consent had been broken.

Agreeing to sex with a condom does (I think) mean you have also agreed to the inevitable consequences of that choice (typical use fail rate by breakage/slippage etc) and the possibility that the partner does not notice that (especially if close to point of ejaculation).

But that isn't OP's position. The man felt the condom break, understood consent was conditional (ie knew she'd ask him to stop to replace) and made an deliberate choice at that point to ignore the conditions of consent.

I do not know what charges could be considered when conditional consent is deliberately breached.

[misty75]

specialsubject, as previously stated, I have asked for advice on whether or not this falls under the law as a crime, NOT on whether I should ask the police to prosecute. To suggest that criminal court action costs the victim or alleged victim any money at all is extremely inaccurate and it is potentially damaging to others, who may not be aware of this, to spread that sort of rubbish here.

Meditrina, thank you so much for your kind support and understanding of the situation.

And thanks again, Vettles, this is very helpful info.

[3xcookedchips]

Why do you want to know if a crime has been committed?

[3xcookedchips]

Why do you want to know if a crime has been committed?

[misty75]

Why do you ask?

[misty75]

Why do you ask?

[eddielizzard]

this is a very good question.

i am not a lawyer and i have no legal training and have no idea what i'm talking about.

if he told you and you requested him to replace the condom, but he didn't and continued then that would be rape wouldn't it?

if he has a disease, such as aids, then he might be guilty of assault or even manslaughter / murder.

if you got pg against your will, i don't know about the crime but that is a always a risk.

bottom line though is this guy is a total arsehole. i would definitely not be seeing him again.

[SoonToBeSix]

Misty I am not blaming you of anything don't appreciate the accusation. I agreed the man was wrong but it isn't rape so isn't fair to class it as such.

[caroldecker]

Not a lawyer, but the sexual offences act here, with quotes below seems to say it is rape.

On the Assange case, section 76 says:

Conclusive presumptions about consent

(1)If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—
(a)that the complainant did not consent to the relevant act, and
(b)that the defendant did not believe that the complainant consented to the relevant act.
(2)The circumstances are that—
(a)the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b)the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.

Under 2a above, this appears to be relevant based on your comments.

Rape is defined as:

Rape

(1)A person (A) commits an offence if—
(a)he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b)B does not consent to the penetration, and
(c)A does not reasonably believe that B consents.
(2)Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3)Sections 75 and 76 apply to an offence under this section.

[scarlettsmummy2]

A good lawyer could probably make a case to say it is rape as the man did something which he knew you would not have consented to.

However- I think as the rape conviction rape currently stands at about three percent the chance of it ever getting to court are extremely slim.

[caroldecker]

scarlett you do not need a good lawyer IMO as his text - "I would have told you but I know you would have made me stop" is as clear cut a case of rape, at leats in his head, as I have heard.
Also a text confession helps the conviction.
And 10% of reported rapes get a conviction, which is about the same rate as violent attacks with stabbing.

[scarlettsmummy2]

Possibly, but a defence lawyer could argue that the defendant felt that the woman was consenting at the time, so he did not intentionally rape her if that makes sense. It all boils down to what the defendants intent was- did he want to rape her? Probably not.

[eeyore125]

Misty, do YOU feel he raped you? Forget the legality side of things for a minute and just ask yourself how you are feeling and coping.xx

[caroldecker]

scarlett NO - intent is irrelevant, it is about consent, not consent then rape regardless of intent.

Did he KNOW he had consent? No, then rape.