Last week, it was widely reported that a man was convicted of raping a sex worker by removing his condom during “consensual” sexual intercourse. The press reporting suggested that the sex worker had clearly specified that the use of a condom was a condition of the agreement to have sexual intercourse and that the defendant had not paid the sex worker for the intercourse.
This case is a paradigm example of the developing legal concept of “conditional consent”. The removal of a condom during sex has colloquially been referred to as “stealthing” and forms one of the behaviours that have been identified by the CPS as an example of a “conditional consent” case.
A “conditional consent” case involves ostensible consent to sexual intercourse being vitiated, in circumstances where the conditions of the consent have been broken, or withdrawn.
This case also demonstrates, contrary to recent media reports, a willingness for the police and prosecutors to proactively pursue “conditional consent” cases, which had previously been considered to be legally and evidentially difficult to prosecute.
In recognising the developing prominence of this issue, the recently amended CPS Guidance: Rape and Sexual Offence contains detailed guidance on “conditional consent.” The CPS now has a policy that all proposed charging decisions in “conditional consent cases” must be referred to the Principal Legal Advisor at the CPS in order to oversee the charging decision.
It is likely that the law will continue to be tested and will develop further on this issue. At the moment, it is not entirely clear what the bounds of “conditional consent” may encompass. So far, Courts have been willing to extend the principle to material deceptions as to the nature and act of the sexual activity in question (including the removal of a condom - Assange v Swedish Prosecution Authority  EWHC 2849 (Admin) at paragraph 86 ), as well as deception as to the gender of the relevant parties.
However, the law is even less clear on what “conditional consent” is not. For example, the Courts have previously held that the failure of a party to disclose a sexually transmitted disease (R v EB  EWCA Crim 2945 at Paragraph 25)prior to intercourse would not vitiate consent. Moreover, under the old law (prior to the introduction of the Sexual Offences Act 2003) it has held that the failure to pay a sex worker could not vitiate consent (R v Linekar  3 All ER 69 73).
So far, the Courts have indicated that “some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent" (McNally v R.  EWCA Crim 1051 at paragraph 25). However, it remains to be seen whether the Courts will stretch the circumstances that are capable of amounting to a material deception, for example to include the failure to pay a sex worker. As the CPS appear to have an emboldened approach towards prosecuting “conditional consent” cases, it may be that the Courts will be required to re-determine what is capable of amounting to “conditional consent”.