An unnamed Frenchman and an anonymous Swiss woman met on Tinder. It started as a protected sex using a condom, only for the woman to realise at the end that the condom was taken off by the man sometime during sex. A Swiss court has convicted the man of rape, explaining that the woman would have refused to have sex had she known that the condom would be removed. The convicted Frenchman was given a 12-month suspended sentence.
This is the first time for Switzerland to give such a verdict. It is also one of the first cases to raise the question of rape in case where protection condition has not been satisfied. In the UK there has not been a charge of rape for deceiving your partner about protection or avoiding protection even when specifically required. However, in 2011, the UK was asked to extradite Julian Assange to Sweden, where he was under investigation for two allegations of sexual molestation, one allegation of unlawful coercion and one allegation of rape. Sexual molestation allegations included not wearing a condom when explicitly required; and lying next to the claimant, pressing his naked erected penis to her body.
Assange tried to argue against extradition on the grounds that failure to use protection when requested was not offence under British Law. Nevertheless, the request for extradition was granted. The President of the Queen’s Bench Division, Sir John Thomas, explained the British Law standpoint on sexual molestation allegation against Assange: “His (Julian Assange’s) 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….”
The allegations against Julian Assange for sexual molestation and unlawful coercion were dropped in 2015 by the Swedish prosecutors due to the expiry of the statute of limitations. The investigation for rape is still ongoing.
Looking through comments on The Independent, The Mirror and The Sun on the article on the Frenchman and the Swiss woman, the general idea held by their readership seems to be that while taking off a condom against the wish and knowledge of the partner can be considered an offence, it does not equate rape. The majority sees consent to sex as having been given by the woman in question. Moreover, some commenters ask whether it would be considered rape if the roles were reversed – if a woman lied about being on the pill, possibly leaving the unsuspecting man with a child and eighteen years of alimony.
The question to rise from this is the very nature of consent and how specific it should be. In the case of rape, an important aspect is for the defendant to be aware that no consent was given or that the consent given works only within certain circumstances (e.g. wearing protection). From the aforementioned comments, it does not seem that the majority of the readership is aware of the contextualisation which breeds consent. Awareness of the consent being circumstantial is a new milestone to reach, both legally and socially.
“Consensual sex is contextual. If you have consented to sex with a condom and someone continues to have sex with you without a condom or deceives you into believing he is wearing one when he is not, you have not consented.” – Rape and Sexual Abuse Support Centre (RASASC).