Consent and Stealthing

This summer the BBC released the drama ‘I May Destroy You’ exploring sexual assault and consent issues. It plays out issues rarely discussed in mainstream media.

Early into the drama, the main character, Arabella is drugged and sexually assaulted. The series follows her journey of flashbacks, piecing together her memories of what has happened to her. The series also focuses on her coping mechanisms and shows her struggle to accept she was a victim.

Throughout the drama stereotypical comments are used such as “you should watch your drink, you wouldn’t be raped”. It is both frustrating and upsetting for victims, but the drama shows the impact this thoughtless comment has on the character and hopefully will raise awareness that a victim is not to blame. However, as a warning for any future watchers of the drama, it may be triggering for anyone who has suffered similar incidents.

Further into the series, a male character has consensual protected sex with a man after meeting on Grindr, a dating app. He is then raped by the same person without a condom when he tries to leave. The scenes highlights the particular risk that dating apps pose. The character reports the crime to the police but sadly he is not taken seriously, he is questioned how someone can be raped if they have consented previously to the same sexual act. It is estimated that 70,000 men are raped every year in the UK so these scenes help to raise awareness of the risks to both men and women.

The series also raises awareness of Stealthing, the term that describes when a man deliberately removes a condom during sex despite agreeing to wear one without consent of the other party. A study published by Alexandra Brodsky at the Yale School of Law brought Stealthing into the press in 2017

The series watches Arabella consent to sexual intercourse with a condom but this is removed without her knowledge during the act. She is then told by the partner “I thought you knew, I thought you would feel it” which is deemed typical gaslighting behaviour in such situation. Arabella struggles with feelings of confusion and violation after she discovers this has happened. It is only further on into the series she finds out this is a popular occurrence and invalidates the consent for the sexual act she gave.

Websites have been set up to advise men on how to remove a condom without knowledge or consent, almost like a challenge.

Not only is there the concern of consent but also sexual transmitted disease and unwanted pregnancies.

Victims' charities say stealthing must be treated as rape and that it's a hugely under-reported problem.

Law

Under Scottish Law there is no specific reference to “stealthing” or condom removal as a criminal offence, but it is legally recognised as a serious sexual offence in England and Wales under the term “conditional consent”.

The Sexual Offences Act 2003 (SOA 2003) outlines the sexual offences which are illegal under the laws of England and Wales. These include: rape (s 1); assault by penetration (s 2); sexual assault (s 3); causing a person to engage in sexual activity without consent (s 4).

Section 74 defines consent as 'if he agrees by choice, and has the freedom and capacity to make that choice'. This is two staged:

• capacity to make a choice about whether or not to take part in the sexual activity at the time in question.
• whether he or she was in a position to make that choice freely, and was not constrained in any way.

Section 74 and conditional consent has been considered by the High Court and the Court of Appeal in a series of cases where ostensible consent in relation to sexual offences was considered not to be true consent, either because a condition upon which consent was given was not complied with or because of a material deception (other than one which falls within section 76 of the Sexual Offences Act 2003 [SOA]).

In Julian Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin), an extradition case, the President of the Queens Bench Division considered the situation in which Mr Assange knew that AA would only consent to sexual intercourse if he used a condom. Rejecting the view that the conclusive presumption in section 76 of the SOA would apply in these circumstances the President concluded that the "issue of materiality ...can be determined under section 74 rather than section 76".

On the specific facts the President said:

"It would plainly be open to a jury to hold that if AA had made clear that she would only consent to sexual intercourse if Mr Assange used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom ..... His 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...."

Currently, when someone consents to have intercourse with a condom and the condom is removed without their permission this consent disappears.

A report by the End Violence Against Women (EVAW) published in December 2018, found that 40 per cent of people incorrectly believe that removing a condom without a partner’s consent is never or not usually sexual assault. https://www.endviolenceagainstwomen.org.uk/

Katie Russell, spokesperson for Rape Crisis, explains: “You may consent to sex with a condom but not without one. You have provided your consent on a condition, and if someone breaks that condition they are breaking the law.” https://www.vogue.co.uk/arts-and-lifestyle/article/what-is-stealthing

There have been few cases that have dealt with the issue of stealthing to date. Of those reported, in 2017 a man was charged in Switzerland with rape which was a landmark case. A policeman was subsequently found guilty of sexual assault in Germany for the same crime. 

In 2019, a man from Bournemouth was sentenced to 12 years in prison after raping a women in a hotel room when he chose to remove the condom being used during sex. The female, a sex worker, had provided conditions of intercourse to where a condom which were agreed beforehand and advertised on her website.

Support for anyone who thinks they may have been affected by anything in this blog can be found here https://www.thesurvivorstrust.org/news/i-may-destroy-you.

 

We encourage anyone who has concerns about sexual abuse to get in touch. You can contact Alan Collins at Alan.collins@hughjames.com or Danielle Vincent at Danielle.vincent@hughjames.com.