In a landmark legal case, a Swiss man has been convicted of rape after secretly removing a condom during sex without his partner's consent.
The Independent reports the 47-year-old man (who has not been named publicly) met his partner on Tinder and they began to have consensual sex with a condom. Afterwards, the woman realized he had removed the condom at some point without her knowledge or approval.
Now, the Federal Supreme Court in Lausanne—the highest court in Switzerland—has judged that such actions do constitute rape, passing down a one-year suspended sentence. In comments to news agency RTS, the victim's lawyer described it as "a first in Switzerland."
Our understanding of consent has evolved hugely in recent years, thanks largely to the dedicated work of feminist activists and anti-sexual violence campaigners. However, for many a question mark hovers over whether removing a condom during sex is legally the same as rape. For the avoidance of any doubt: under UK law, it is.
"This comes down to a discussion about 'conditional consent,'" says Dr Sinead Ring of the University of Kent. Ring refers me to the Sexual Offences Act 2003, which she describes as a "really good piece of law." In particular, section 74 of the official legal guidance to the act covers conditional consent. In it, everyone's least favorite self-styled anti-government warrior gets a mention.
Read more: Why Victims of Rape and Abuse Stay Silent
Before he hid out in the Ecuadorian embassy waiting for another visit from Pamela Anderson, Wikileaks' Julian Assange was accused by two women of intentionally tampering with or removing condoms during sex, without their consent. (He has maintained his innocence throughout.)
The guidance specifically references the case against Assange, after the UK authorities deemed that there were grounds for his extradition back to Sweden to face rape charges. It reads, "his [Assange's] conduct in having sexual intercourse without a condom in circumstances where she had made clear she would only have sexual intercourse if he used a condom would therefore amount to an offence under the Sexual Offences Act 2003." In other words, removing a condom without consent constitutes a sexual offence.
Journalists outside the Ecuadorian Embassy in London, where Julian Assange lives. Photo via Wikimedia Commons
"A lot comes down to what can be proved in court, however," Ring explains. "If it's proved the woman consented to sex with a condom and he changed the circumstances under which she'd consented, it's quite possible he'd be convicted of rape. But a jury would have to determine that he didn't have a reasonable belief in consent and just went ahead and did it anyway."
Herein lies the problem: While British law is strong, so many things have to go right for a criminal case to secure a conviction. Evidence must be sufficient; the Crown Prosecution Service must push forward with the case; the victim must have the psychological resilience necessary for a long and protracted case. And that's before we get to the potentially prejudicial attitudes held by jury members.
"So much comes down to what kinds of myths or attitudes individual jurors have about women and sex and what constitutes rape and what isn't rape," Ring argues. "The law can do so much, but really it comes down to juries and getting them to make decisions that aren't contaminated by rape myths."
Advocates say that education is needed to tackle the problem. "We need much more education around sexual consent throughout society," argues End Violence Against Women spokesperson Sarah Green. "Statutory sex and relationship education in schools would be a key step in particular, in helping young people navigate the myths and stereotypes around sexual violence that remain so prevalent."