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.

"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"

Interesting, slithy. I'm not sure. I would mention a couple if things though - one, the man is not being exposed to increased risk of STD transmission by this deception and two, the man is not being exposed to the health risks associated with map/abortion/pregnancy by this deception.

I also think there's something about the physical, "here and now" presence of the condom which might be tipping the legal balance. If a man told a woman he had had a vasectomy when he hadn't, I'm not sure that would constitute rape as all the "physical" things about the act that happened would have been consented to.

And my guess is it wouldn't automatically turn into rape from consensual sex because it wasn't physically forced. It was achieved by deception not force? I guess the other question is, whether sex without consent is alway rape or whether it can be classed as sexual assault.

Either way it doesn't look good for OPs ex.

Bill in the Nova Scotia case the psychological harm caused to the man by having an unwanted pregnancy made it an assault.

unreal that sounds awful.

Unreal, you meant the woman?

Interesting. But there was still a physical, immediate act that caused that risk.

Consent is at the heart of the Sexual Offences Act - touching without consent is sexual assault and penetration without consent is rape. The sentence for sexual assault can be as long ie it isn't a "lesser" offence necessarily although it obviously comes with a wider range of sentencing.

I would say assault and battery sounds right at a minimum for the situation described in the OP. Not sure how comfortable I am with that article I linked judging the crime by the potential harm which is done. Does that mean it's not rape if the woman is infertile and the man has a clean bill of health? Because the sex was still against her terms of consent.

Regarding men, non consensual sex and the pill, I also agree that something about the presence or lack thereof of condom seems more immediate than the pill. Which doesn't seem right morally as it would still be non consensual sex.

It could be argued I suppose that the risk for a man is not to ones health (pregnancy, stds) but to ones lifestyle (don't know if this is the right word) if the sex without a pill led to pregnancy.

I'm not on the attack but using this as a jumping off point.

And my guess is it wouldn't automatically turn into rape from consensual sex because it wasn't physically forced. It was achieved by deception not force?

I don't believe this is true, because I can think of other incidences where it would definitely be rape even if there is only deception and no force. (Admittedly extreme) but say you had consented to piv with man a, who took you from behind, and then sneakily man b took his place - that would be a major deception resulting in rape.

Bill, OP did consent to penetration, so it might not be rape.
That's why I questioned the issue of conditional consent.

Slithy, yes in that case the assault was against the man because it psychologically damaged him to have her get pregnant with his child.

I realise I'm sounding like an MRA, I'm definitely not! Just devils advocate.

That 'one of the boys' article in the Torygraph up thread summed up the backward thinking in this area of law.

Slithy the non consensual pregnancy issue is a bit of a red herrin really, it may or may not be a consequence of rape.

But it does tie in with the deception that took place and both actions would then be sexual assault.

Your extreme example probably sadly happens a lot but that would involve both deception on the part of the first man and rape by the second.

It depends whether 'penetration' refers to the initial moment of penetration, for which he did have consent, or the whole period of penetration during the act, for which he did not have consent as he knew the circumstances she had agreed to no longer applied.

I don't know the case legally, but yes it is rape. You gave consent with certain conditions, as soon as the condom broke, he knew you would no longer have consented.

Well, you can consent to piv, and then say stop once it's begun, and if he doesn't, it is rape.

He knows she would have said stop when the condom broke had she known about it.

He admits to knowing this, and carrying on regardless.

Therefore, it certainly seems rapey.

For those who haven't followed the link on the first page of this thread, here is the most relevant case law.

In the Assange case the court said:

"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...."

In another case a woman sued the DPP for failing to prosecute her former partner. She had consented to sex provided he withdrew before ejaculating. He did not withdraw. The court said:

"She was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly her consent was negated. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuation of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape."

Both these cases cover the concept of conditional consent. They suggest that the OP's partner could be found guilty. He knew the OP only consented provided a condom was used. He has admitted that he knew the condom had broken and failed to give the OP the choice as to whether or not to carry on.

If he did not know the condom had broken until he withdrew it would be a different matter. He would then have reasonably believed that the conditions in which consent was granted still applied so would definitely not be guilty of rape.

Unfortunately both decisions above were in the High Court. That means they are not binding on the Crown Court (which is where a rape case would be heard), the Court of Appeal or the Supreme Court. The state of the law on conditional consent is therefore not entirely clear.

"Bill, OP did consent to penetration, so it might not be rape."

Unreal, my response was to say that it can't be sexual assault if it isn't rape as the consent test is the same for sexual assault. Either conditional consent of this nature is allowable or it isn't.

As prh said conditional consent is still unclear in the law, goes back to what I was saying earlier about the nature of consent as a one way street, a permission. Perhaps we should be talking less about whether the woman grants the man consent which is an outdated concept anyway implying passivity and more about whether the consent is mutually agreed.

But I agree this case should be rape or least sexual abuse.

I agree that a lower court doesn't have to abide by the high court judgement.

What I am saying is that, if the lower court deemed that the conditional consent was valid ie it wasn't rape, then they couldn't bring in some other charge related to sexual assault as that too would hinge on the same consent question. That's my understanding.

Previous discussions about the definition of consent came up with "enthusiastic consent" or "enthusiastic participation" - whilst I think these should be taught in PSHE I don't think they would legally work.

Each person in a sexual context has to reasonably believe the other is consenting, it's not just woman consenting passively to man.

I would hope the lower courts would be guided by the high court view, though - I'm not a lawyer so don't know.

Sorry, but I havn't read the whole thread.

This is not rape. Rape is when someone forces the self on you when you have said 'no'. What this man did was wrong and I would be angry ( maybe not worth seeing him again as he sounds like a c*nt ). It's easy to get the morning after pill and very unlikely that you have caught anything ( though there is a chance and I know that would be worrying ). It's not really worth reporting and ruining this mans life even though what he did was stupid.

I would hope the lower courts would be guided by the high court view

High Court decisions are binding on magistrates courts and county courts. Rape cases would generally be heard in the Crown Courts which are on the same level in the hierarchy of courts as the High Court. The Crown Courts would therefore not be bound by a decision of the High Court. They may consider the High Court's decision but they are free to disagree with it.

unrealhousewife - I don't see how consent is in any way passive. It means giving permission for something to happen. And I have no idea how you expect mutually agreed consent to work in rape cases. The accused's consent is not in doubt. The only question is whether or not the victim consented.

You should read the thread, Marne:

1. Rape is sex without consent, not sex with force
2. The rapist in this scenario has had unprotected sex with prostitutes, so STDs are more likely than average
3. Op had the worry of getting the MAP/waiting for a PG test brought about deliberatlely by his actions
4. She is not "ruining his life" - he deliberately did something that could have ruined hers and it is up to the criminal justice system to conclude whether or not that is rape.

FFS.

Thanks for clarifying PRH

marne2

In that case I suggest you read the whole thread. As the law stands it is not entirely clear but it is quite possible the man would be convicted of rape if prosecuted.

The trouble is that during sex consent alters as things move on. This is what this guy would argue, that circumstances changed but the fact that he didn't discuss that with her and denied her a choice is probably the bit where it turns from sex to rape, or assault. He is also a serial offender and without a prosecution he will go on to do it again so that may strengthen her case.

Likewise a woman might be enthused during sex to wanting to get pregnant even though that wasn't the deal when they started out. According to the Nova Scotia case if that causes harm or damage to the father then it becomes assault. Based on 50 percent of pregnancies here are unplanned (last time I looked) there could be quite a few cases brought. And if men use that as a way of avoiding paying for care for their children there will be suffering all round.

I come from the Jeremy Kyle school of thought on this, and tell my daughters if they are both not prepared to accept the consequences of pregnancy, don't mess around. It won't stop them, it will simply make them more choosy when they do.

If he dangled her out of a window whilst she was asleep, a and told her about it when she woke up, sending a text that confirmed it, would she be "ruining his life" to report this "stupid" act that risked her life and health for his enjoyment?

Marne, I assume you agree that it would have certainly been rape if the OP's ex had told her about the broken condom at the time, she'd asked him to stop and he didn't?