Removing condom during sex - is it sexual assault/rape?

[Sheilbh]

Dishonesty is not exactly unheard of in navigating sexual consent - from lying about your job, your community, your age, whether you're married or not, etc.  Should all of those be criminalized?

In the UK this is the key section, I think - and was used for the extradition application for Julian Assange. It's about dishonesty relating to the sexual act:

76Conclusive presumptions about consent
(1)If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—
(a)that the complainant did not consent to the relevant act, and
(b)that the defendant did not believe that the complainant consented to the relevant act.

(2)The circumstances are that—
(a)the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b)the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.

So if you say you're going to use a condom and then you remove it you've deceived them about the nature of sexual act and moved from one they've consented to, to one it's broadly presumed they didn't consent to.

This also applies to someone agreeing to have sex only if their partners withdraws to ejaculate and they deliberately don't:

"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. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuation of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape".

[Berkut]

All these nuances are within the same basic definition of what minimally constitutes assault, but we don't have to lay them all out specifically in the law, right? That is what we have prosecutors and courts for - to say "Nibbling someone's ear without consent does not meet the bar, vis-a-vis see JoeTheEarGuy vs. Jane, 2013" and hence we aren't prosecuting that!

But wait - he actually BIT her ear and drew blood?? Well, THAT is different from that case, so maybe we will prosecute that....

Right?

That's fine - if you trust judges and lawyers like me to draw the line in the right place.  And the more grey areas there are in law, the more discretion you give to police and prosecutors and the less certain you can be of any one outcome.

Is there an alternative?

I mean, if as a society we find that the court system doesn't draw the line where we like (say you acquit someone of rape when they definitely had anal sex without permission) then that is the point at which we can and should pass a law making it more explicit.

At least, I think that is how it is supposed to work....

[Josquius]

Is a sexual misdemeanor a thing?

A problem I can see is what if it comes off accidentally?

[Barrister]

And I think there is a pretty easy to apply "standard and expected" measure around sexual acts as well. I don't think anyone actually assumes that consent to sex includes consent to anal sex for example, and anyone who claims they thought it did is full of shit, especially if they claimed it was so clear that they could just do it without asking first, verbally or otherwise.

So the law doesn't use anything like "standard and expected" when it comes to sexual assault.  The problem is one of date rape - it opens up a whole can of worms of "well she was dressed slutty / well she came back to my room / well she didn't say no" kind of defences.

So the law (again in Canada though broadly similar in other places) is if someone didn't consent then they didn't consent.  It doesn't matter if the other partner expected them to consent.  The only defence then is one of "honest but mistaken belief in consent".

[DGuller]

In the age of sex offender registries, and the propensity for them to retroactively cover more and more crimes, I think there is effectively no such thing as a minor sex crime.  In light of that fact, I think everyone should err on the side of criminalizing fewer acts rather than more acts. 

The problem with making potentially a lot things a sexual assault is that you're going to have very inconsistent but draconian enforcement: most people who could get convicted will probably not be convicted in one way or another, and the likelihood of being convicted would be more a function of how honest you are with investigators.  My understanding is that pretty much the only way to get convicted in cases where consent is in question is to tell on yourself.

[Sheilbh]

And I think there is a pretty easy to apply "standard and expected" measure around sexual acts as well. I don't think anyone actually assumes that consent to sex includes consent to anal sex for example, and anyone who claims they thought it did is full of shit, especially if they claimed it was so clear that they could just do it without asking first, verbally or otherwise.

So the law doesn't use anything like "standard and expected" when it comes to sexual assault.  The problem is one of date rape - it opens up a whole can of worms of "well she was dressed slutty / well she came back to my room / well she didn't say no" kind of defences.

Incidentally the UK government has announced they'll be launching pilots specifically to address these after a recent collapse in the (very low) rate of rape convictions - there were similar trials already underway in 2010 before they were cancelled so I worry this will be too slow. But it is frustrating to see more women trusting the police enough to report sexual offences and the rate of successful convictions plumet like this:

Ministers apologise to rape victims and promise overhaul of system
Alexandra Topping and Caelainn Barr
Thu 17 Jun 2021 22.23 BST
Last modified on Fri 18 Jun 2021 05.26 BST

Ministers have apologised unreservedly to rape victims, saying they are "deeply ashamed" that thousands of survivors have been failed on the government's watch, as they pledged an overhaul of the criminal justice system.

A long-awaited government review into a precipitous decline in rape prosecutions promises sweeping reform of how cases are handled in England and Wales, including targets for the Crown Prosecution Service (CPS) and police to increase the number of prosecutions, and plans to shift the focus of investigations from the victim's credibility to the perpetrator.

But while charities and victim groups welcomed the apology, they said the measures lacked urgency and were underfunded.

Vera Baird, the victims' commissioner for England and Wales, said it was right that ministers had "voiced their shame" and resolved to reverse the downward trend in prosecutions, but added that there was "no hiding that this review presents some missed opportunities".

The lord chancellor, Robert Buckland QC MP, said he was "deeply sorry" many victims had been denied justice "as a result of systemic failings" after years of austerity. "We will not rest until real improvements are made – from transforming the support given to victims, to ensuring cases are investigated fully and prosecuted robustly," he said.

The police and the CPS have been ordered to work together to increase the number of rape cases making it to court and return prosecutions to 2016 levels before the end of this parliament.

A pilot named Operation Soteria, which pushes police and CPS to focus investigations on suspects rather than complainants' credibility, will be rolled out across four forces by the end of the year with the intention of implementing a national "radical new operating model". Funding of £3.2m to cover the project for 12 months will come from the Home Office.

Sarah Crew, the National Police Chiefs' Council's lead for rape, said the service was "absolutely committed to doing better", while the director of public prosecutions, Max Hill, said he was "determined to lead meaningful and lasting change".

"Scorecards" that measure "timeliness, quality and victim engagement ... and implementation of the action plan" will be published every six months. The crime and policing minister, Kit Malthouse, has been given responsibility for overseeing the implementation of the rape review, and will head a monthly external taskforce including the victims' commissioner, the domestic abuse commissioner, victims' groups and representatives from the criminal justice agencies.

"We've taken a hard and honest look at how the entire criminal justice system deals with rape, and in too many instances it simply has not been good enough," said Malthouse, who added that the police and CPS would be "more accountable than ever".

In a warning shot across the bow for the agencies involved, the review states that should the already-launched CPS-police joint action plan not be enough to improve outcomes, "further proposals ... will be considered".

The review followed a series of revelations in the Guardian and sustained campaigning from victims' groups about the failings over rape prosecutions.

It recommends an overhaul of the treatment of rape complainants, in an attempt to tackle the growing number of those dropping out of cases – in the past five years the attrition rate has increased from 25% to 43%.

A pilot allowing victims to pre-record their evidence and cross-examination, to spare them the trauma of attending court, is being extended from three to six courts and if successful will be rolled out nationally.

In a raft of proposals, the review also advises that victims:
    Should no longer be subject to a "digital strip search" of their communications, and only evidence that is pertinent to a rape case should be used at court.
    Have their phones returned within 24 hours, with a replacement being provided during that time.
    Have access to therapeutic and clinical support, with the ambition of boosting the number of Independent Sexual Violence Advisors (ISVA) by 700.
    Receive clear and prompt engagement from first report to trial, and better information about their rights.

The review was announced in an attempt to halt a major drop in rape prosecutions, which have fallen to historic lows since 2016, while rape reports have doubled.

Prosecutions in 2016-17 stood at 5,190 and fell nearly 60% in four years to 2,102 in 2019-20, even as the number of reports to police increased.

Convictions have also fallen to a record low. According to Guardian analysis of the most recent quarterly figures, there were 1,917 fewer rapists convicted in the year to December 2020 than in 2016-17, a decline of 64% – the CPS secured 2,991 convictions four years ago, compared with 1,074 last year.

Andrea Simon, the director of the End Violence Against Women Coalition (EVAW), said that while the review showed a desire to fix the justice system for rape survivors, there was "a distinct lack of urgency, measures which reflect the ambition needed and resourcing of plans to make this a reality".

In a joint statement, Evaw, the Centre for Women's Justice, Imkaan and Rape Crisis said the review proposed pilots and consultations that may not see results for years, instead of taking urgent action. They added that not enough work had been done to support minority groups and their access to justice.

The organisations have previously accused the government of failing to engage with victims, and Simon noted: "Unfortunately these recommendations reflect this failure to hear from survivors themselves."

The review also examined why the number of prosecutions had fallen to such a degree. A legal case brought by Evaw and the Centre for Women's Justice accusing the CPS of raising the bar for charging was dismissed in March. The review concludes that the reasons are "complex", and include an increase in demands for digital data, investigative delays, "strained relationships" between different parts of the criminal justice system, a lack of specialist resources and "inconsistent" support for victims.

The report does not directly mention the impact of austerity or cuts, despite the fact that since 2010 the CPS has faced a 25% budget cut and a 30% reduction in staff, while police forces in England and Wales lost 21,732 officers between March 2010 and March 2018 (15% of their total number).

As part of the review, the Law Commission will consider reforms "to increase the understanding of consent and sexual harm and improve the treatment of victims, while ensuring that defendants receive a fair trial". It will also examine rape myths and the use of victim's sexual history and medical records as evidence.

[Jacob]

In the age of sex offender registries, and the propensity for them to retroactively cover more and more crimes. I think there is effectively no such thing as a minor sex crime.  In light of that fact, I think everyone should err on the side of criminalizing fewer acts rather than more acts.

I don't think this is a trend outside of the US, so it's not really relevant outside of that jurisdiction. And honestly, the answer there is to push back against the registries and their implementation, rather than condoning "lesser" offences.

My understanding is that pretty much the only way to get convicted in cases where consent is in question is to tell on yourself.

That doesn't seem to apply in the particular case at the start of this thread?

[Barrister]

My understanding is that pretty much the only way to get convicted in cases where consent is in question is to tell on yourself.

That doesn't seem to apply in the particular case at the start of this thread?

I wanted to argue with Tyr, but then I remembered the last sex assault case I got a conviction on was one that heavily relied on statements made by the Accused.

https://www.canlii.org/en/ab/abca/doc/2021/2021abca27/2021abca27.html

Which the eagle-eyed amongst you will realize was overturned in the Court of Appeal with a new trial ordered.  Complainant then refused to testify what would have been a third time and the charges were stayed.

[Barrister]

Is there an alternative?

I mean, if as a society we find that the court system doesn't draw the line where we like (say you acquit someone of rape when they definitely had anal sex without permission) then that is the point at which we can and should pass a law making it more explicit.

At least, I think that is how it is supposed to work....

I'm not asking you guys to draft a new law - I'm just more curious what your opinions are.  Because these are issues that I can certainly struggle with sometimes, the "where do you draw the line" questions.

[HVC]

I don't know if he had just taken off his condom. Sleezy but I don't know if it's sexual assault. But here she specific told him not to remove his condom and he did so anyway. So in this case I say sexual assault.

[merithyn]

What happened was he not only disregarded her request to wear a condom, but also put her at risk of a potentially deadly medical condition - pregnancy. Additionally, had she become pregnant and didn't believe in abortion, he then put her in a position to either give up a child she didn't want but may now feel a bond with due to the pregnancy or keep a child she didn't want.

This isn't just about whether or not he nibbled on her ear after she asked him not to. He threatened her life with his actions, as well as precariously put her into a horrible moral quandary had he impregnated her.

He took control of her body away from her with his actions. How is that not sexual assault/rape?

[Habbaku]

What happened was he not only disregarded her request to wear a condom, but also put her at risk of a potentially deadly medical condition - pregnancy. Additionally, had she become pregnant and didn't believe in abortion, he then put her in a position to either give up a child she didn't want but may now feel a bond with due to the pregnancy or keep a child she didn't want.

This isn't just about whether or not he nibbled on her ear after she asked him not to. He threatened her life with his actions, as well as precariously put her into a horrible moral quandary had he impregnated her.

He took control of her body away from her with his actions. How is that not sexual assault/rape?

[Barrister]

What happened was he not only disregarded her request to wear a condom, but also put her at risk of a potentially deadly medical condition - pregnancy. Additionally, had she become pregnant and didn't believe in abortion, he then put her in a position to either give up a child she didn't want but may now feel a bond with due to the pregnancy or keep a child she didn't want.

This isn't just about whether or not he nibbled on her ear after she asked him not to. He threatened her life with his actions, as well as precariously put her into a horrible moral quandary had he impregnated her.

He took control of her body away from her with his actions. How is that not sexual assault/rape?

I have to push back against the "potentially deadly medical condition".  The US maternal mortality rate is 19/100,000.  In Canada it's 10.

https://en.wikipedia.org/wiki/List_of_countries_by_maternal_mortality_ratio

As well it's a risk in any sexual encounter.  No method of birth control is 100% effective.  Condoms break.  And in any event this guy didn't ejaculate inside of the woman - he ejaculated on her back.

Like I said it kind of feels like this be against the law.  But I can't articulate a principled reason why this, and not some of the other examples.

[Admiral Yi]

It's definitely a breach of contract, but I guess that's more civil than criminal, jah?

[The Brain]

From the quote in the opening post it's not clear to me exactly what happened, so it's hard to say much about that specific case. Did he penetrate her without a condom?