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.

Hesterton- I would agree that that is an excellent analogy. Morally very wrong, but not sure it is quite the same as the lay mans understanding of 'rape'.

Eurgh disgusting man

Carol- sorry- rape does fall under the basic intent requirements. It is states quite clearly in the Act.

You gave consent with conditions. He knew that those conditions had ceased to be met.that means consent had ceased.

You are allowed to remove consent after the act has started
Sex without consent is rape.

So yes you were raped

scarlett read my post above, the only mention of intent is the actual insertion, so not rape if he accidently puts th penis in. He does NOT have to have an intent of rape.
This is why convictions are so low, it is not clever lawyers, it is incompetent juries.

That is why convictions are so low, it is not clever lawyers, it is incompetent juries.

Not true. Rape has one of the highest conviction rates of any major crime. 63% of rape prosecutions result in a conviction.

If you are referring to the oft quoted 6% figure, that is the proportion of rape allegations that result in someone being convicted of rape. The biggest factor there is victims withdrawing their allegations. Nothing to do with clever lawyers or incompetent juries.

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

That is wrong. The Act is quite clear that it is not rape if he reasonably believes (which is somewhat short of knowing) he has consent. This has long been the case, well before the 2003 Act came into force. If the accused knows there is no consent or is reckless as to consent (i.e. doesn't care whether or not there is consent) he is guilty. If the accused reasonably believes there is consent he is not guilty even if that belief is misguided.

To put it another way, to be guilty the accused has to know he is raping the victim or not care whether or not he is raping the victim.

he knew he didn't have consent if he wasn't wearing a working condom. he knew the op would stop him if she knew the condom was broken.

hence it's rape.

To carry on from my last post, it is therefore possible for the victim to be raped but for her attacker to be not guilty of rape. That is the situation if she does not consent but he believes she does.

The OP was definitely raped. Her consent was conditional and the conditions were not met. Is the man guilty of rape? There is very little case law around conditional consent so it is impossible to be certain. If he was unaware that the condom had broken I would have said that he was not guilty. Given his admission in a text message that he knew the condom had broken I think it is possible he could be convicted. I certainly think the police were wrong to say that no crime was committed. In my view they should have investigated and passed their findings to the CPS for a decision as to whether or not to prosecute.

"No it's not rape would you seriously want to ruin this mans life over this? Yes he was selfish and stupid but not rape."

He took a deliberate decision to continue having a kind of sex to which he did not have consent nor did he have reasonable belief that he had consent.

By doing so, he knowingly exposed OP to an increased risk of pregnancy and of STDs.

But she's the one who shouldn't "ruin his life"?

Righty-ho.

PRH, with the text message evidence, could OP make a civil claim?

Am not a lawyer so this is all just my own fumblings....

scarlett rape requires intent for only part of the crime, that is, the penetration of the vagina, anus or mouth with the penis. This is basic intent, not specific intent - ie the person only needs to intend doing the physical act, they do not have to intend the act of rape. The second part of the mental state required is a lack of reasonable belief that the person is consenting. This reasonable belief bit is a pain for juries I think. It is partly objective - ie according to the standards of a reasonable person, was the belief in consent reasonable - but it also instructs the jury to have "regard to all the circumstances". Anyway so this part of the crime can be satisfied by negligence, and since this relates to consent and there is no requirement of an intent to rape, I would say overall rape is

NB where a person consents to penetration, and then withdraws their consent during the sexual act, and the penetrator doesn't withdraw, this is rape (case: Leaver 2006).

So the question here is is consent here vitiated? I think there are two ways it could be though this is my own reading of the statute!
(1) does the splitting of the condom, which the man knows about, remove his reasonable belief that the OP is consenting
(2) does the splitting of the condom bring him under s.76 of the 2003 Act, conclusive presumptions against consent ie changes the nature / purpose of the Act.

I think that it does vitiate consent, but not under any of the provisions of the 2003 Act.

Here are some examples of s.76 cases, it seems to be understood as being tricked into sex, rather than the conditions of consent.
www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/consent/#a06

I would imagine it's more likely to be seen as an assault/battery.

I meant to say, overall rape (the offence on the statute book) is peculiar in that it is ultimately characterised by not requiring intent viz consent, but that a reasonable belief in consent is acceptable. So as prh says so much better, you can be raped and the man not be guilty under the law. Equally a man can be convicted of rape when he genuinely believes a person is consenting (and the court says that this is not a reasonable belief).

And SoonToBeSix attitudes like yours are depressing. I'm not a lawyer but I'm interested in what constitutes the crime and whether I agree with that, and your emphasis on the well being of the man when OP has experienced what many of us agree is rape, and come here looking for advice and support is appalling.

BillnTedsMostFeministAdventure - She could certainly try but a civil claim would also be affected by the uncertain state of the law around conditional consent. It would only be worth making a claim if the man would have enough assets to pay any compensation ordered by the courts. I am not aware of any case law but I suspect that any compensation awarded would be significantly lower than in a case not involving conditional consent.

rootypig - Yes, s76 is primarily about tricking the victim rather than conditional consent. In the Assange case the courts referred to s74, the argument being that by proceeding when the accused knew that the conditions under which consent was given no longer obtained the assailant is removing the victims choice as to whether or not they agree.

Re-reading, I don't think my last sentence is very clear. To put it more simply, when he became aware that the condom had broken he could have asked the OP whether or not she wanted to carry on. That would have given her the choice. By carrying on without asking her he was removing that choice. His justification that he expected the OP to ask him to stop and replace it shows, in my view, that he was reckless as to consent which is why I think he might be convicted if prosecuted.

A friend of mine had was in this situation, however he says he was unaware the condom had broken until after. She said he must have known and contacted the police - he was arrested and subsequently cleared, no case. He is now however a shell of a person he once was, suffers from extreme anxiety and depression, is scared of women, and suffers paranoia due to believing he will be known as a rapist even after no charges were brought. This is all thanks to her not willing to take responsibility for the accident, (as much as him) and wanting someone to blame if she fell pregnant , she doesn't believe in morning after pill or abortion (religious family) Me personally, rape is when you are forced to have sex in violent or intimidating situation against your will, you gave him permission to have sex with you.

interesting thanks prh

" This is all thanks to her not willing to take responsibility for the accident, (as much as him) and wanting someone to blame if she fell pregnant , she doesn't believe in morning after pill or abortion (religious family) "

Do you think she believed him but lied to the police then?

"Me personally, rape is when you are forced to have sex in violent or intimidating situation against your will, you gave him permission to have sex with you."

Rape is sex without consent. Violence, intimidation or force are not prerequisites

HTH.

The agreement between them was sex with a condom. That was his intent, and that's what happened. When the condom broke that was an accident and he should have stopped so he has broken the agreed terms.

It is a bit like having sex with someone and then they cheat. You say I will only have sex with you if you are the only partner. If they are cheating you that's not rape, it's cheating and the cheater pays for the damage caused (or not).

So I think that he's breached the terms of the agreement and that was a verbal contract and probably damages could be sought for breaching the agreement but I don't think it's rape.

I am NOT a lawyer either.

Me personally, rape is when you are forced to have sex in violent or intimidating situation against your will, you gave him permission to have sex with you.

Well, the law, which is what we are discussing, says otherwise. Thank christ.

It is a bit like having sex with someone and then they cheat.

I disagree, and so does the law - otherwise every adulterer would be committing rape with their partner. Being deceived as to the situation you find yourself in, is not to be deceived as to the nature and purpose of intercourse. R v Jheeta was a consent case (in 2007) where the defendant told the claimant the most extraordinary lies - the complainant was obviously fairly unwordly - he posed as the police in phone calls and text messages, telling her she must have sex with him... The court (of appeal) said her consent was valid.

From the judgment:
Held , (1) that the ambit of section 76 of the 2003 Act was limited to the “relevant act” to which it was said to apply, which in rape cases was sexual intercourse; that section 76(2)(a) was relevant only to those cases where the defendant deliberately deceived the complainant about the “nature” or “purpose” of the intercourse, and no conclusive presumption arose where the complainant was deceived by the defendant in some other way; and that, since the complainant had been deceived not about the nature or purpose of the act of intercourse but about the situation in which she found herself, the conclusive presumption in section 76(2)(a) had no application (post, paras 24, 28).

(Though in this particular case the defendant had admitted that at times he knew that she was not consenting to sex and so his conviction for rape in those instances was upheld).

Any civil remedy (damages) sought would not be a breach of contract, as the verbal agreement to have sex lacks most of the ingredients needed for a legal contract. Any claim would be for personal injury.

Oh sorry unreal I just realised you said it's NOT rape excuse me

I do disagree about the parallel you draw between being an adulterer, which I think relates to the situation, and continuing knowing that the condom is broken, which to my mind changes the act that the person has consented to.

Urgh I should not try to think after 3pm.

Thank you so much everyone for this mine of information and discussion. I wasn't even aware of the term 'conditional consent' and the legal process around it, nor of the difference between a condition relating to the material act or relating to less relevant stuff. I had no idea cases like this were supposed to be referred to the PLA, nor that it existed, and I knew that if a guy had lied about, for example, marital status, that it wouldn't be rape, but that this was different, and I knew why it was different, but just didn't know how to articulate this in legal terms. I am sorry I can't scroll back and thank everyone by name due to being on a tablet, but I am very grateful and impressed with the empathy, intelligence and support that you have shared here.

It's sad to see the attitudes of the occasional person here, and I don't mean those who have added intelligent and rational opinions about why the law might not consider this rape, as it's always useful to see an issue from all sides. I mean those who see the word 'rape' and appear to play some kind of tabloid-inspired game of word-association (false allegations, ruined lives etc.). Such posters also seem to make countless assumptions about the kind of person they think I am and the situation I'm in.

In fact if it was simply the incident I've described, then I would not have gone to the police, although I maintain that I would have had every right to do so had I wished. I was stupid enough to minimise it to the extent that I accepted his apologies and continued a relationship with him for three months. He was extremely charming, convincing, apparently very loving, manipulative, deceitful and controlling and what was in some senses an intoxicating whirlwind romance was also a whirlwind cycle of emotional, financial and sexual abuse, apologies, forgiveness, and more lies and abuse. There have been other criminal acts as well as countless cruelties that are not actually crimes, and the rape is the only possible crime that I have evidence of in the form of a text message.

One of the final straws is that whilst high on drugs the other week he confessed to me that he has in the past deliberately removed condoms in such a way that they would not notice, while having sex with prostituted women so that he could come inside them without their consent. I was enraged and terrified and screamed at him that he had raped them and raped me. I saw the incident as part of a bigger pattern.

The main reason I went to the police was to ask for protection. I am currently unsafe in my home and am in the process of applying for an injunction. I told them that I was undecided as to whether or not I wanted them to take any action against him for the rape, but that I wanted it on record. I was upset by the officer's assertion that nothing I had told him constituted a crime and wanted to see if he had missed anything - clearly he had missed a lot and I thank you all again for helping with the information and support that has restored some of my confidence :) xx

Oh misty, how awful for you

I know it's terrible to think about but since this man has has sex with prostitutes without using a condom, have you been retested for STDs?

Harrassment and putting a person in fear of violence are criminal, would he qualify for those?

You are right, emotional abuse is not criminal. I'm hoping that now that they are making it a crime if perpetrated against children (hopefully), the same will happen for adults.