In a landmark ruling in Lausanne, Switzerland, an unnamed man has been convicted of rape after removing a condom during otherwise consensual sex.
The 47-year-old French man and his partner met on Tinder in June 2015, according to Swiss news agency RTS. He initially wore a condom during sex but took it off part way through without her realising, prompting the woman to contact police.
The case is similar to the charges leveled against Wikileaks founder Julian Assange who is wanted in connection to an alleged sexual assault in Sweden where a woman has said he also had sex without a condom and without her consent. Assange, however, is further alleged to have initiated the sexual activity while the woman was asleep.
Assange has denied the allegations and sought ongoing refuge from extradition in the Ecuadorian embassy in London.
In Australia, as in both Sweden and Switzerland and elsewhere in Europe, there’s no specific law that refers to the removal of a condom as a form of rape. However that doesn’t mean it wouldn’t be prosecuted here, if the act could be proven in court. Queensland University of Technology senior lecturer in criminal law Nigel Stobbs told the Brisbane Times in 2010, when the Assange case first made headlines, that “there’s no express mention of it in the criminal code but it relates to what constitutes consent,” and so in theory it could count as assault.
But the burden, as always, would be on the woman to prove that the act had happened, and then a jury would need to be persuaded that the act was, in fact, enough of a breach of consent to prosecute.
An argument that a defence attorney might put forward is one that is popular in comments sections on the topic: that if men can be prosecuted for deceiving a woman about a condom, a woman should be able to be prosecuted if she lies to a sexual partner about taking the pill or other contraception.
The French man was sentenced to a 12 month suspended sentence.
