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.

Unreal, where in the Nova Scotia report, which was about a man sabotaging condoms, did it say that? Have I missed something?

Prh, in lay mans terms giving consent for something to happen is inherently passive. Mutual consent is also passive. What OP had was conditional consent. Consent is about trust, as in access to use medical information, school trips for children. To me it's like saying "I agree that you can do x general thing to the best of your ability." When I googled it a page came up on a home swap site, with people being encouraged to fill out a form.

Of course I understand there is no mutual consent in rape, forced or coerced or otherwise. And the deception about the broken condom was what turned this from sex to rape here. I am just complicating things.

in lay mans terms giving consent for something to happen is inherently passive

I don't agree. Consent can be active or passive. Passive consent is where someone fails to opt out. Active consent is where they choose to opt in. "Giving consent" to me implies that it is active. Not that this is terribly relevant to this discussion.

Prh are the terms passive and conditional consent new? Thanks for explaining.

I'm sorry if I don't agree with what some of you are saying ( it's just my view) I have experienced rape, I never reported it, I was forced to have sex after I said 'no', I tried to push him away, how can this compare to a condom splitting?

I do feel for OP but she did consent to sex.

Sadly I don't think she will get anywhere by reporting it ( that's just the way it is ), how is she going to prove what happened? There will be no sign of a struggle or any force used, he will say ' he didn't know it had split', it will be her words against his and sadly there is no proof. Many woman are petrified of reporting rape ( rape where a man forces himself on a woman and she does not give consent ) because sadly it's hard to prove even though often there is evidence if reported straight away. I just feel that this is nothing like rape, what he did was wrong but is it really rape? Has anyone actually looked up the true meaning of rape?

Read the thread, he has confessed in a text that he deliberately decided not to tell her about the split condom.

If you had read the thread you would know that he has sent a text admitting he knew the condom had split early on and didn't tell her because he expected her to tell him to stop and replace it. So there is proof.

There are people who have looked up the true meaning of rape on this thread. I have quoted some relevant judgements from the High Court. In the circumstances described by the OP it is possible the man could be convicted of rape.

Marne, I am sorry for what happened to you

Yes, I am familiar with the definition of rape in the Sexual Offences Act 2003 and it is penetration without consent.

OP's testimony as a witness is evidence (quite often the only evidence in rape cases) and she also has the evidence of the text message. The rapist could take the stand and say what he said to OP ie yes he did knowingly continue after the condom broke. The legal point in question would still be whether consent is negated by the knowing breach of the OP's condition.

Legal definition of rape:

www.rapecrisis.org.uk/rapeampsexualviolence2.php

On a point of law, that last link talks about sexual assualt, and goes on to say "apart from penetration of the mouth with the penis, the penetration of the anus or vagina (however slight) with any object or the penis, which is rape."

I thought that rape could only be with a penis. Yet the above definition means that a woman can rape a man with an object.

Have I read it right?

No.

That's come up before, I think it's bad punctuation in the link.

Op

I believe you were raped. I think that because you gave him the condition sex could take place. That was broken by him knowingly continuing at a point he knew you would stop if you knew.

Rape doesn't have to be violent. Least not in stereotype terms. Or maybe it's better put that all rape is violent? Unsure.

I'm so sorry. I believe and in fact agree with you, regardless of likelihood of conviction. That's not my area. Hope you're ok.
X

" Or maybe it's better put that all rape is violent?"

Yes - all rape is assault, it is a crime of violence.

As a side note on judicial attitudes to rape, I was dismayed to read this, from an article by Lady Justice Arden (she now sits on the Court of Appeal) in 1999, on the impact of the Human Rights Act on the criminal law:

As regards sentencing, a sentence may be disproportionate to the gravity of the offence and thus contrary to the Convention. As is well known, the Crime (Sentences) Act 1997 introduced a new system of automatic life sentences. Under Section 2 of the Act, an offender convicted of one of the offences included in the definition of serious offence who had previously been convicted of another serious offence, must be sentenced to life imprisonment unless there are “exceptional circumstances”. Serious offences include attempted rape. Suppose that a defendant, who has a previous conviction for manslaughter for which he was not given a life sentence, commits an attempted rape following the break-up of a long relationship with the victim but that after the event he is forgiven by the victim and the victim and the defendant propose to marry. If the defendant is convicted of attempted rape, he will automatically incur a life sentence under the Crime (Sentences) Act 1997 unless it is held that there are “exceptional circumstances”. Dr David Thomas Q.C. has pointed out that in such a case it must be open to a defendant to claim that to impose a life sentence is to subject him to “inhuman...punishment” contrary to Article 3.

So attempted rape of your partner, when she forgives you, is not a serious offence. ?!?!? (Compare to judicial attitudes in Brown, where adult men consented to gay S&M but their acts were found to be criminal). I hate to say it - I really do, I actually hate that it is the case - but it so often seems that women in positions of power posit the most offensive attitudes (most offensive, to my mind, because they are the most insidious) about women and sex. Perhaps because as women they feel that they have more leeway in terms of perception to speak to sensitive issues (well screw that), but I think in large part it is an expression of the peculiarly female trait of feeling able to judge other women's choices and evaluate their experiences. This is to my mind a consequence of women being a(n) (under)class - the patriarchy identifies us as a gender, where men are individuals - and we have internalised this. We see ourselves as irreducibly, inescapably female, rather than human, or a person. So when a man speaks, it is for himself, but when a woman, she speaks for all women. It is women's acceptance of this in the terms of debate that is what I think kneecaps feminism.

As you were.

I have also experienced rape and I hate it when other survivors get on their high horse about their rape being more valid than someone else's experience.

I am sorry OP, and I agree, it is rape.

Just catching up on the thread after that mammoth off course post above.

Bill 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.

I'm not sure that this is decided and in theory I think that they can be separated. It is possible that a crown court would say that the breaking of the condom and continuing without it is a separate act from the piv sex. For example, you could consent to piv sex and the man could without your consent withdraw and ejaculate in your face. This would be a sexual assault (assuming it comes within the ambit of sexual touching). Using that examply, I don't think that logically because the continued sex with the broken condom required piv that it is impossible for a court to say that piv was consented to but the ejaculation, say, or the touching with the naked penis, was a separate criminal act and was not.

hmm.

Nice rant Rootypig.

I do think laws around sex and abuse are misleading and outdated. Many men don't see rape as violence, they think it's just wrong sex. Girls growing up are totally confused and the newspapers still report about child pornography when it's is all plain old ugly nasty abuse and violence. The word violence seems to mean very different things to different people.

And I stll think the term consent is read by most people as a permission after which point anything goes.

Interesting, rooty. I see where you are coming from.

Thanks

Bill ignore all that waffle I just posted, I think that the thing about conditional consent is it surely goes to the reasonable belief in consent ie did OP's sexual partner, knowing as he did that the condom had broken (and that OP did not know), reasonably believe that she would continue to consent to piv sex. This is surely subjective ie a finding of fact and will depend on the emphasis the complainant placed on the use of the condom? Eg there could be a scenario where a woman and man who did not know each other well had sex, and he insisted on the use of a condom. She doesn't care. The condom breaks. He decides to continue. Presumably this is different?

cross post

waffle waffle

"She doesn't care. The condom breaks. He decides to continue. Presumably this is different"

Yes, I think it is as he had reasonable belief in her continuing consent.

No I don't think that's rape or sexual assult. How can he be aware for sure that the condom split whilst he was busy screwing?

He said he was steph

Which is right there in the OP, Steph.

Agree Bill, sorry if my last few posts made me seem like I don't support the idea that this is a case of rape - I do and have from the start - am interested in the arguments and in the law.

lilsteph if you're not going to read the thread, at least read the bloody OP!