This week has seen a number of potentially far-reaching judicial interpretations in other jurisdictions about what constitutes consent to sex and whether consent can be revoked and at what stage.
1. Man convicted of rape after removing a condom without consent
In Switzerland, in a landmark decision for the law on rape and consent, a 47 year old man has been convicted of rape for removing a condom during sex, without the consent of his sexual partner. The man has been given a 12 month suspended sentence in what has been described by commentators as a broadening of the scope of what constitutes non-consensual sex.
What does this mean for consent in rape cases in England and Wales?
The logic behind the Swiss verdict was simple: had the complainant known that a condom was not going to be used, she would not have consented and sex, in any form, without consent is rape. The ruling has sparked a debate about consent and the possible ramifications on cases dealing with sexual assault beyond just the Swiss courts. However, this is not unchartered territory, at least insofar as the English courts are concerned.
Parallels have been drawn between the Swiss case and the English case of R (on the application of F) v The Director of Public Prosecutions and “A”  EWHC 945 (Admin). In the latter, the court ordered the Criminal Prosecution Service to review its decision not to prosecute A, the husband of F. The wife alleged that the pair had a fraught marriage, and that she was subjected to domestic abuse by her husband. The wife had sought to have her husband prosecuted for rape on the basis that she consented to sex only if her husband did not ejaculate inside of her. Her husband did ejaculate inside her, saying that as her husband he could do what he liked to her. The CPS declined to prosecute the case as rape, but on judicial review was instructed to reconsider this decision. Ultimately, however, no prosecution stemmed from these facts.
Topically, the Swiss case has also evoked memories of the Assange and Sweden debacle, particularly given the commutation this week by US President Obama of the prison sentence of Assange’s source, Chelsea Manning. Assange, who is currently claiming diplomatic asylum in the Ecuadorian embassy in London, is wanted for questioning by Swedish prosecutors in relation to facts similar to those in the Swiss case. Moreover, like the Swiss case, the presiding judge at Assange’s extradition trial did note that, had the rape case against Assange been brought (and proven) in an English court, he would have been guilty of an offence under the Sexual Offences Act.
2. Civil court used to plug the gap in criminal system in consent case
In other developments in Scotland this week, two professional footballers were ruled to be rapists in the civil court and ordered to pay damages to the complainant, Denise Clair. As in F v A, the CPS decided not to prosecute David Robertson and David Goodwillie when Ms Clair reported the crime to the police, having woken up in strange flat after a night out. Ms Clair then turned to the civil courts for redress.
As well as being groundbreaking in its use of the civil courts to fill the gap left by the criminal justice system, Ms Clair’s victory has potentially wide-reaching implications for the nature of consent. In Ms Clair’s case, it was decided that drunken consent was not consent to sex, and there was no way that the accused ought reasonably to have believed she did consent. The ruling is interesting, even factoring in that the judge thought the Defendants lacked credibility, or the civil court’s lower standard of proof.
It will certainly be interesting to see the impact of the Scottish case on the law in the UK in this area, and whether the civil route will be used by increasing numbers of complainants in the future.
In any event, the fact that two rulings on consent have emerged within a week of each other can only be viewed positively, and a world away from the old German view that a woman only meant no if she fought back.