A recent article by Alexandra Brodsky, published in the Columbia Journal of Gender and Law, has reignited the debate on both sides of the Atlantic about the status of current laws on rape and consent. Her article highlighted the apparent “trend” of men who, without the consent of their partner, choose to remove a condom during sexual intercourse.

The individuals interviewed by Brodsky as part of her research described feeling violated, powerless and confused about whether they had experienced a sexual assault. Whilst all of them described the betrayal of trust and lack of respect over their bodily integrity, none of them brought legal action.

Since Brodsky’s article was published, this issue has been before the courts in Switzerland on appeal. In January of this year, the Criminal Court of Lausanne found a man guilty of rape for the act, and handed down a 12 month suspended sentence. On appeal, the Cantonal Court of Vaud found that, whilst the sentence handed down was appropriate, the offence itself should be downgraded to one of “defilement.” This mirrors a Canadian Supreme Court case in 2014 (R v Hutchinson), which found that a man who had tampered with a condom by poking holes in it without his partner’s knowledge was guilty of aggravated sexual assault and sentenced to 18 months in prison.

Commentators are divided over whether, under English law, the unilateral decision to remove a condom during sex could vitiate the consent to that activity and therefore be classed as rape. Whilst the matter has not yet been properly examined by the courts, this article considers whether the concept of “conditional consent” is wide enough in scope to criminalise the actions of those who unilaterally alter a fundamental term on which sexual activity is agreed.

The current law of consent

Under the Sexual Offences Act 2003 (“the Act”), there are four offences for which the prosecution must prove (a) that the complainant did not consent and (b) that the defendant did not “reasonably believe” that the complainant consented. The relevant offence for consideration of stealthing is rape (s.1).

The giving of consent is defined in section 74 of the Act as the agreement by choice, where the person consenting has the freedom and capacity to make that choice. Capacity is often considered in respect of a complainant who is deemed to have been so intoxicated that he/she could not have consented. The element of “choice” is one which goes to the heart of the issue at hand.

Section 75 provides for circumstances where it is presumed that there is no consent if the defendant knew them to exist at the time of sexual activity. Those include the use or fear of violence, unconsciousness, unlawful detention or the lack of ability to consent by reason of physical disability or the administration of drugs.

Section 76 provides for circumstances in which a complainant is either (a) intentionally deceived as to the nature or purpose of the relevant act; or (b) intentionally induced to consent by the defendant impersonating someone known to the complainant. In both these circumstances, the courts conclusively presume that there was no consent.

The Act therefore makes no specific reference to the concept of “conditional consent”. Stealthing does not fit neatly into any of the circumstances outlined in sections 74 – 76. It has been left to judges to try and grapple with what relationship, if any, there is between consent, and a person agreeing to sex only on a conditional basis.

Conditional consent in the courts

When tracing the way the courts have dealt with this issue, a clear trend emerges. As societal thinking over the past 10 years has become more focussed on issues of consent so, it appears, have the criminal courts.

The first case to consider the question of conditional consent was R v B [2006] EWCA Crim 2945, where the defendant had sexual intercourse with the complainant without informing her that he was HIV positive. On that occasion, the Court of Appeal held that non-disclosure of his HIV status not only failed to vitiate consent, but was entirely irrelevant to both s.74 and s.76. For a time, this appeared critically to undermine the concept of conditional consent in English criminal law.

Whilst this decision has not been overturned, the High Court has since done its best to limit its application. In Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin), the court considered directly the question of condom removal. The High Court stated clearly that in their view, deception as to the wearing of a condom would negate any free choice made by a complainant.

The Assange position was supported, again in the High Court, in the case of R(F) v DPP [2013] EWHC 945 (Admin). Here the couple had sexual intercourse on the understanding that the man would withdraw prior to ejaculation. However, he later deliberately ignored this and refused to withdraw. The court highlighted the importance of “choice” in s.74, and said that in this case “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.

The final nail in the coffin of R v B came with the decision of the Court of Appeal in R v McNally [2013] EWCA Crim 1051. The court was concerned with the issue of consent based on deception – in this case the defendant deceived the complainant as to her gender. The court limited the application of the comments in R v B to cases of implied, rather than express deception and held that if someone is expressly deceived regarding certain issues prior to sex, then the premise on which they are consenting to sex may be false. The Court did not specify what these issues might be, or try to limit them beyond saying “some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent”. The Court has therefore firmly established the concept of conditional consent as falling within s.74 of the Act.

Commentary

The fundamental question which McNally sadly leaves unanswered is what deception will be serious and substantial enough to vitiate consent? Lies told in order to induce a person to engage in sexual activity can obviously vary from the potentially life-changing (e.g. deception as to HIV infection) to the mundane (e.g. wealth – the example given in McNally as being insufficient to vitiate consent).

But a line must be drawn somewhere, and there are ethically problematic choices to be made. What about deceiving someone as to religion or marital status? A “broad common-sense” approach (advocated in McNally) is fine in principle, but this is inevitably an area with potential for the boundaries of law and morality to become very blurred indeed.

The Canadian court, in the case of Hutchinson, tried to draw a distinction between deception which carried a significant risk of bodily harm (i.e. pregnancy or STIs) and that which did not. Whilst this appears on its face to be sensible, there are problems with creating distinctions based on the potential consequences rather than on the act itself. For instance, the significant risk of pregnancy obviously serves to prioritise a female complainant over a male complainant. Or if a defendant knows that he does not have an infection which could be sexually-transmitted, is he less culpable than the defendant who has not been recently tested?

What is clear is that the question of stealthing, which on the face of it falls firmly towards the more serious end of the spectrum, is not straightforward. Certain women in the Brodsky study reported having conversations with their partners before sex, whereby it was made clear that they would not consent to having sex without a condom. Where the partner then unilaterally decides to remove the condom, it is hard to see how that is any different to the express deceptions which the courts have clearly held to vitiate consent in Assange and McNally. Whilst it is technically accurate, despite Assange, to say that the position has not yet been decided by a UK criminal court, there is a very convincing argument that free choice would be removed by this act, and that stealthing could therefore be rape under English law.

But what of those cases where a condom is put on, and then removed without any explicit conversation either way? Is the act of putting on a condom in itself a silent representation that it will be worn throughout? It cannot be right in principle that the line between consent and non-consent is simply whether the terms of consent are expressly discussed before the act itself.

Given the recent and sustained increase in press coverage on this issue, and the very real public policy questions it raises, it is only a matter of time before the courts are faced with a rape indictment founded on the act of stealthing. When they are, the courts will need to consider carefully whether the wearing of a condom is sufficiently fundamental to an individual’s choice to engage in sexual intercourse that the removal of it would nullify their consent. A guilty verdict in such a case would send a clear message against the ideas of male sexual dominance which pervade the chatrooms dedicated to fans of stealthing, and would be welcomed by those who view Brodsky’s research as an important step in the battle against sexual violence. However, whether the courts would be brave enough to open the floodgates on conditional consent is an entirely different matter.