In a landmark ruling in Switzerland, a man has been found guilty of raping a woman after he removed a condom without permission during what had, up until that point, been consensual sex. He has not been named, and of course nor has the victim, so currently there are no further details beyond the fact they met on Tinder. The Swiss federal supreme court handed down a suspended 12-month sentence. The case is a Swiss first, but has no direct bearing on the rest of Europe; rape law differs wildly across the continent. European human rights legislation has little to say on the crime except where it bifurcates a separate article; it can be a breach of privacy (article 8) or an act of torture (article 3), but you have no human right per se to sexual autonomy. Astonishingly, Germany only last year accepted the word “no” as the refusal of consent: previously, a victim would have to prove that they had fought back.
Nevertheless, any new territory chartered in rape law has an atmospheric impact on general perception. It’s worth considering how this case would play in an English court. Dr Sinead Ring of the University of Kent notes that removing a condom partway through sex without consent, “is not definitely an offence under English law. It has never been brought as a case. But there is a section in the Crown Prosecution Service (CPS) guidance on conditional consent, and this would be an example of that.”
It’s puzzling to think of another example: if you were a sex worker and had consented to sex on condition of being paid, and weren’t, would that then be rape? “No,” says Ring, “breaking the contract doesn’t make it a criminal case. There’s space for a feminist critique of that, however.” The example Ring gives is that “people might say it’s conditional consent if a person is presenting as one gender and the appellant’s conception of their gender is different.” Ring refers here to the McNally case, in which a teenage girl claimed her lover posed as male but was actually female. Ring notes however, that in her view, “to compare someone taking off a condom to a person expressing their conception of their gender is problematic”.
To return to the Swiss case, or as close as is possible: the condom/safe(ish) sex issue has come up explicitly only twice in English law, since the Sexual Offences Act was strengthened in 2003: once, in a judicial review process in 2013: “She consented to sex on the clear understanding that her partner would not ejaculate inside her. He knew and understood that this was the only basis on which she would consent to have sex with him. [So when he did] she was deprived of her choice, and her consent was negated.” However, the director of public prosecutions’ decision not to prosecute was found incorrect: it was a rape and should have been prosecuted. The case has not so far resulted in an actual prosecution.
The second is the more notorious Assange case, in which similar circumstances were seen as grounds for a rape charge by Swedish prosecutors, although they were not identical (the issue being that the alleged victim was deceived because she was asleep, not by sleight of hand). Since one was a judicial review and the other an extradition, neither of these cases was heard by a jury, which is salient, given that juror prejudice is often seen as the undoing of rape prosecutions. Ring advises against blaming juries too much, pointing out that once a rape case comes to court, the conviction rate is relatively high – 57% – and the woefully low conviction rates we see from reported rapes are due as much to obstacles further up the pipeline – that is, the police or the CPS.
The juror issue is key, though, since the law can say what it wants, in precedent or on the statute books, but a jury must still be persuaded; which naturally falls into a wider context of what we socially understand rape to be.
Many women would not, under the condom circumstances, press rape charges. Not necessarily because they were ignorant of the law (although the conditional consent element, section 76 of the Sexual Offences Act, is untested in open court and little known). But there is also, I think, huge anxiety about amplification; women don’t want to give ballast to the myth of “crying rape” – we don’t want to undermine, or muddy the waters for, women who have had more traumatic rapes. And so there is a tacit process of sub-division– call it for brevity the “Ken Clarke” – where we stratify rapes into classic, serious, violent, marital, sort-of, technical and maybe. It’s unspoken because those are distinctions you would make for yourself, but you would never want to tell another woman how serious or unserious her experience had been. Silence militates against solidarity, so one perceives one’s own case to be in competition with another women’s rather than in concert with it.
There’s also an appalling flattening out of sexual abuse cases in the one-line summary (this is probably true of a lot of crimes). It’s a natural demand of the law, that the technical breach should be the headline; but it often gives no sense of the nature of the crime. Context is everything, and can be rendered in a ruling but rarely in a summary. By the time it hits the public domain, it has often been simplified to the point of incomprehensibility, whereupon it becomes evidence that sexual offence legislation has “gone too far”. It’s enough to put anybody off reporting anything.
The most positive transnational move towards international consistency, and stronger, more transparent law has been the Istanbul Convention, which aims to bring violence against women – including all non-consensual acts of a sexual nature – into a human rights framework. The UK signed in 2012, but has yet to ratify, opposed by the conservative MPs David Nuttall and Philip Davies; Davies derailed it at the end of last year with some warbling parliamentary obstructivism. He, incidentally, was recently elected uncontested to the parliamentary women and equalities committee.
There are politicians afoot who will make it their life’s work to tell you what isn’t rape; it’s a matter of civic duty to think deeply about what is.