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.

It is rape.

Rape is all about consent. The op would not have consented to unprotected sex therefore the "consent" on this occasion was not true consent. Consent can be withdrawn throughout intercourse, just because you started off consenting does not mean you cannot withdraw that consent. Sex without consent is rape.

The text message is corroborative evidence that he knew you may have withdrawn consent and should you choose to report it would be useful. Certainly more evidence than in a lot of cases i've been involved with (police)

Whether this would see the inside of a courtroom is neither here or there. This is rape

Sorry, should have explained concept of true consent. Here from the CPS website

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

You get conditional agreement but can you put conditions on consent? Isn't it a yes/no thing

Say i agree to have unprotected sex with John. On the face of it i consented. However, what i didn't know is that John has HIV, because he decided not to tell me in case i declined sex. That's conditional consent.

Women can be found guilty of joint enterprise rape - where a woman holds the victim down for a male to rape. Rape requires penetration by a penis. Penetration by other body parts or objects is sexual assault by penetration

Well now I'm really confused, I guess I always was though...

What are you confused by unreal? (I don't mean this in a challenging way, am interested!)

That's conditional consent.

No it isn't. Conditional consent would be when you have consented to sex provided a condom is used. Consenting to unprotected sex without knowing the other party has HIV may be deception by the man but it is not conditional consent unless you specifically state that you consent to unprotected sex provided he is clear of STDs.

Thank you phr, I'm back on track now.

DPP, Alison Saunders, on R4 today programme now talking about rape and consent. 8.20am - will be available on iplayer catchup in an hour or two.

(sorry - Director of Public Prosecution, head of the CPS, which generally takes the decision to bring criminal proceedings)