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Original poster

Was this legally rape?

135 replies

misty75 · 02/06/2014 08:07

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.

OP posts:
unrealhousewife · 04/06/2014 21:43

What's the difference between consent and agreement? You get conditional agreement but can you put conditions on consent? Isn't it a yes/no thing?

BillnTedsMostFeministAdventure · 04/06/2014 21:48

OP, would you consider talking to women's aid or rape crisis? They may have some ideas that could help.

BillnTedsMostFeministAdventure · 04/06/2014 21:49

"What's the difference between consent and agreement? You get conditional agreement but can you put conditions on consent? Isn't it a yes/no thing?"

I don't think so. I can consent to vaginal sex but not oral sex, for example.

rootypig · 04/06/2014 22:08

unreal consent is a more substantial concept than agreement. You can agree without consenting. s.74 it must be a choice and you must have freedom and capacity to make the choice ie material consent. The evidential presumptions in s.75 and conclusive presumptions in s.76 bolster this in specific scenarios, but it is not limited to those scenarios - I've just had a look at Assange after prh mentioned it, there's interesting info on the CPS website
www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/consent/#a06

Re conditions: yes it's a yes / no thing - the conditions describe to what you are consenting. Court must decide if the conditions change the nature / purpose of the act.

unrealhousewife · 04/06/2014 22:10

Isn't consent bound with a kind of delegation of responsibility? I think consent is the wrong word here.

I don't think you consented to sex, I think you made an agreement that he could have sex with you on certain conditions. The moment the condom broke he broke the agreement and found himself having sex with someone without consent, but you were both having sex without consent or agreement at that point.

That's why I don't think it's rape, perhaps there needed a second point in your agreement that covered what would happen if the condom broke. Sorry I'm being very clinical about this, I'm trying to look at it from a technical perspective.

BillnTedsMostFeministAdventure · 04/06/2014 22:54

"the agreement and found himself having sex with someone without consent, but you were both having sex without consent or agreement at that point"

Err, what? He was aware of the change in status re condom and she wasn't. He had intent to continue with the changed status despite having no reasonable belief that he had consent to do so.

BillnTedsMostFeministAdventure · 04/06/2014 22:57

That article concludes with a joke about consulting a lawyer if you have a date coming up.

Hmm
unrealhousewife · 04/06/2014 23:02

Yes I noticed that, and did a double-take when I saw it was written by a woman. A tiny part of it makes sense, the concept of conditional consent within law is somehow flawed.

BillnTedsMostFeministAdventure · 04/06/2014 23:06

"A tiny part of it makes sense, the concept of conditional consent within law is somehow flawed."

Why?

BillnTedsMostFeministAdventure · 04/06/2014 23:08

Contracts have conditions all the time - if I stop paying my professional insurance, my contracts are in breach, for example, and if the counterparty discovered that they could stop paying for services.

unrealhousewife · 04/06/2014 23:11

There's a difference between agreement and consent.

A contract is an agreement.

Consent is permission from one person to another but agreement is a two-party two-way thing.

rootypig · 04/06/2014 23:44

Isn't consent bound with a kind of delegation of responsibility? I think consent is the wrong word here.

unreal I don't follow. Do you mean consent is inherently passive?

There is no contract here, not at all, the idea is irrelevant. The formation of a contract requires several technical elements, none of which is present. It is an agreement, in some sense, but a great deal more than that.

unrealhousewife · 05/06/2014 00:01

Consent is something you give to someone so you could say it's passive. It is usually used to give permission for something, like access to medical records etc.

What I'm saying is that consent with a condition is an agreement as there are compromises or conditions on both sides. I think I'm arguing that conditional consent can't exist, it becomes something else - a contract or an agreement.

rootypig · 05/06/2014 00:19

Oh I see more where you're coming from. A contract means something quite specific, legally. So that was clouding my understanding. But you're saying that conditional consent is by necessity reciprocal, ie I will X if you Y (have sex with you, if you wear a condom) so that it makes no sense to talk only about what I 'consent' to-? Does that fit with / capture what you're saying?

If so, how about seeing it as, I consent to X, which is a situation in which you do Y. Ie the consent is full, but only to one specific type of act.

The disagreement then comes between people who do not think that sex with or without a condom is a materially different act, therefore the consent cannot be said to evaporate. Whereas most people would agree that consent to vaginal sex would not necessarily include anal sex, as an example, because most people agree that that is a different act and requires specific consent. But it's a spectrum. We surely can't say that to consent to some sexual act means consenting to all sexual acts - so where is the line drawn? I think the judge in Assange sticking to s.74 was wise to do so, because it focuses on the consent that the complainant actually gave, if that's not too reductive.

unrealhousewife · 05/06/2014 00:55

I think the fact that he didn't tell her that the act had changed from being the sex consented to to a different act is crucial. While she thought the consensual act was taking place it was actually something different.

So perhaps it is his deception that is the key. The fact that the condom broke couldn't automatically turn him from lover to rapist, but the fact that he deceived OP about it is a breach of trust and from the moment he decided to continue and not withdraw or ask for consent it became an act of abuse.

I'm getting there I think. Just being very pedantic about the word consent. My daughter has just reached the age of consent - it would be nice to be able to explain to her exactly what that means. I'm not sure I know any more.

BillnTedsMostFeministAdventure · 05/06/2014 00:59

"So perhaps it is his deception that is the key. The fact that the condom broke couldn't automatically turn him from lover to rapist, but the fact that he deceived OP about it is a breach of trust and from the moment he decided to continue and not withdraw or ask for consent it became an act of abuse."

Yes, exactly.

rootypig · 05/06/2014 01:09

Agreed - that would speak to his reasonable belief in her consent - in my post at 10.22, the first of two ways I thought consent could be vitiated under the statute. And also to the materiality of consent under s.74, the ability to make a choice.

Talking to your daughter about consent would be interesting. Maybe you could start by asking her what it means to her?

One thing I think that young girls and women need to know is, in the eyes of the law, a drunken consent is still a consent (though a jury must have regard to the circumstances when deciding on the defendant's reasonable belief, and they may well conclude that the defendant was too drunk for anyone to reasonably believe that she was consenting - this is a question of fact, and a difficult one to establish. This is for voluntary intoxication, involuntary intoxication is an evidential presumption in s.75). I do NOT believe that drunk women are culpable in their rape. But I know that they are more at risk Sad. I also - perhaps more interestingly - know that there have been times that I have genuinely consented, drunk, to something that I would not have consented to sober. That I have got drunk being reckless to the possibility of x,y,z happening and I have, the next day, deeply regretted it, while knowing that I consented. I want my daughter to understand this ebb and flow within herself and to be able not only to communicate her consent, but to understand the pressures and desires within herself.

unrealhousewife · 05/06/2014 01:10

That's what you were all saying earlier, I know. It's the consent word I'm having serious trouble with. I think it's completely inadequate to be used in 2014. It implies passive agreement to any sex act, it's very misleading.

unrealhousewife · 05/06/2014 01:11

That was @ BillnTed

unrealhousewife · 05/06/2014 01:27

Thanks Rootypig, she's very sensible, we learned the hard way as she was online groomed a few years ago. I have bitter experience of the law and its failure to deal with what would now be child abuse but then was not (no images involved). She now fully understands deception and violation although only in the virtual world. When it happened and I contacted school, expecting some kind of counselling to take place they seemed to think it was 'just one of those things'. The law really does need to catch up, the term consent really does imply a one way street and a delegation of responsibility - a 'giving up' of yourself for someone.

slithytove · 05/06/2014 01:32

I would assume that OP consented to protected sex, and no other type (just like consenting to piv and not anal)

Therefore when he knowingly stopped having protected sex and went on to having unprotected sex, the consent was invalid. This was non consensual sex.

And as I understand it, non consensual sex, is rape.

Irrelevant to the above but it has prompted a question someone mentioned earlier.

If a man consents to conditional piv (woman on the pill) and she is deceptively not, is that also non consensual sex and therefore sexual abuse (since men can't be legally raped by women)?

unrealhousewife · 05/06/2014 07:11

The global mail article states that if the deception leads to harm it becomes sexual assault.

That's more along the lines of what I was thinking.