Removing Condom During Sex is Rape

One man’s life will never be the same after being convicted of rape for secretly removing a condom during sex with a woman he had met online.

The 47-year old French man and his companion, a Swiss woman, met on Tinder (where else). After their second date, they decided to go to bed together. They were having consensual sex and the man had agreed to wear a condom, but decided to remove it during intercourse.

When the woman found out, she called police and had the man arrested. The man was charged with rape and the case proceeded to a trial in the Swiss Supreme Court.

At trial, the woman testified that she only found out the man was not wearing a condom when the sex was over, and that she would never have consented if she knew the device had been removed.

The court found that the man’s actions were enough to establish the offence of rape. He was convicted and given a 12-month suspended prison sentence.

The ruling is a first for Switzerland. However, it will have no bearing on sexual assault laws in other countries, as they differ across Europe and beyond.

In Germany, for example, it was only last year that the law accepted the word ‘no’ as the refusal of consent. Until that time, a complainant had to prove physical resistance.

Sexual Assault in NSW

Section 61I of the Crimes Act 1900 (NSW) contains the offence of ‘sexual assault’. The section provides that:

‘Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.’

The offence is ‘strictly indictable’ which means it must be finalised in a higher court such as the District Court.

What is ‘sexual intercourse’?

‘Sexual intercourse’ is defined by section 61H as:

• sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:

(i) any part of the body of another person, or

(ii) any object manipulated by another person,

except where the penetration is carried out for proper medical purposes, or

(b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or

(c) cunnilingus, or

(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).

What is consent?

Section 61HA (now superseded by section 61HE) defines consent in the context of sexual assault cases in NSW.

Subsection 2 states that a person consents to sex if he or she ‘freely and voluntarily agrees to the sexual intercourse.’

A person cannot agree to sexual intercourse if they are under the age of consent, which is normally 16 years of age.

Those who are aged between 16 and 18, and are in a relationship of ‘special care’ are also unable to give consent eg a relationship between a teacher and their student, or a health professional and their patient. Those who do not have the ‘cognitive capacity’ to consent cannot do so, regardless of their age.

Section 61HE(3) states that a person has sexual intercourse without consent if he or she:

• knows the other person does not consent,

• is reckless as to whether the other person consents, or

• has no reasonable grounds for believing that the other person consents.

Any steps taken to ascertain whether the other person consents will be relevant to any such determination. Self-induced intoxication is not a relevant consideration.

Section 61HE(4) says there is no consent where the complainant was:

• unconscious or asleep,
• under threats of force or terror, or
• being unlawfully detained.

Section 61HE(5) provides that a person cannot consent if they are under a mistaken belief:

• as to the identity of the otherperson,
• that the otherperson is married to them, or
• that the sexual intercourse is for health or hygienic purposes.

Subsection 6 says the following matters are relevant when determining whether a person consents:

• substantial intoxication,
• any intimidatory or coerciveconduct, or threat of force, and
• any abuse of a position of authority or trust.

The circumstances which may amount to a lack of consent are very broad in NSW, and those who are charged should contact a criminal defence lawyer before speaking with the police.