“Stealthing” conviction brings conditional consent out in the open
This is the first blog in a series which follows the experiences of the main characters: Arabella, Terry, Kwame and Theo. Each one is subjected to or witnesses some form of sexual harm; the series is a study of sexual assault.
Arabella meets a man called Zain, a likeable character who shows her care and affection. The audience see Zain as ‘good boyfriend material’. The two explicitly agree to have sexual intercourse at her flat. Arabella asks Zain if he has a condom. Zain initially puts a condom on, but he discards it when the pair change sexual position. Arabella is unaware that the condom is no longer being used, and Zain continues to have sex with her regardless.
Afterwards, Arabella finds out that Zain had deliberately ignored her request. Her anger at his betrayal and the fact that he has seemingly prioritised his desires over her sexual safety is palpable. His response to being confronted about it? “I thought you knew…”
Arabella, a budding writer by profession, is invited to speak at a writer’s summit. Her anger towards Zain’s deceitful actions escalates and she decides to publicly declare Zain a rapist: “He’s not rape-adjacent or a bit rapey, he’s a rapist under UK law”.
‘Stealthing’ is a non-legal term that describes, among other things, when a man removes a condom during sex despite agreeing to wear one.
Stealthing is seen by many as a flagrant violation of a sexual partner’s trust as well as their consent. It arguably goes beyond their consent because it is done without the other party’s knowledge; it exposes them to potential Sexually Transmitted Diseases (‘STDs’); and brings with it the risk of pregnancy.
See our related blog here: Sex, lies and legal consent: can deceit turn into rape? This considers other circumstances which may fall under the definition of stealthing, such as a man failing to withdraw prior to ejaculation, despite having agreed to do so.
‘Rape’ is defined in Section 1 of the Sexual Offences Act 2003 (‘the Act’), and is committed when a person (A) with a penis intentionally penetrates the vagina, anus or mouth of another person (B); B does not consent to the penetration; and (A) does not reasonably believe that (B) consents.
‘Consent’ is defined in section 74 of the Act, which says that a person consents if he or she agrees by choice and has the freedom and capacity to make that choice.
‘Conclusive presumptions about consent’ are set out in section 76 of the Act, which says that it is conclusively presumed that there is no consent in circumstances in which a complainant is either (a) intentionally deceived as to the nature or purpose of the relevant act; or (b) intentionally induced to consent by the defendant impersonating someone known to the complainant.
The High Court and Court of Appeal have considered cases in which ostensible consent to sexual intercourse was vitiated, in circumstances where the explicit or implicit conditions of that consent have been broken, or undermined. See our related blog here: “Stealthing” conviction brings conditional consent out in the open. This considers the extent to which the law on breaches of ‘conditional consent’ has developed, as well as the Crown Prosecution Service policy towards these cases.
Julian Assange v Swedish Prosecution Authority  EWHC 2849 (Admin), the High Court deals with a case that is factually similar to that of Arabella and Zain, involving the situation in which Mr Assange knew the complainant (‘AA’) would only consent to sexual intercourse if he used a condom. The President of the Queen’s Bench Division 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...."
Yes - Zain’s actions could be classed as rape. Sex without informed and freely given consent is rape.
A jury might find that discarding of the condom without Arabella’s knowledge removed her ability to agree by choice (you can’t agree to something you don’t know about), and therefore she did not consent to having sex with Zain in those particular circumstances. In other words, she was deprived of the opportunity to make a choice freely about whether or not she wanted to have sex with Zain without contraceptive protection. Further, it may be that Arabella was intentionally deceived or that her consent was obtained by a deception. Arabella implied that she only consented to have sex with Zain under the condition that a condom would be used. Again, it would be for a jury to decide whether or not she made that condition clear to Zain.
All allegations of rape are unquestionably serious matters, but the factual matrix surrounding rape allegations in the context of stealthing are particularly complex. Usually, rape cases are sent to a specialist unit within the Crown Prosecution Service (‘CPS’) known as ‘RASSO’ (Rape and Serious Sexual Offences unit) for charging decisions to be made. However, the CPS now has a policy that all proposed charging decisions in ‘conditional consent cases’ must be referred to an even higher echelon within the CPS, the Principal Legal Advisor, who oversees charging decisions in these more complex and nuanced cases.
This is not a part of the ‘I May Destroy You’ plot, but it is interesting to consider what the potential consequences of this scenario would be.
In practical terms, for the prosecution to satisfy the Full Code Test, the Prosecution would have to prove to the requisite high standard (so that a jury is ‘sure’ or ‘beyond reasonable doubt’) that:
The prosecution’s difficulties in surmounting these hurdles are obvious and it is therefore no surprise that it is rare for positive charging decisions to be made in cases where it is alleged that a STD was intentionally or recklessly transmitted from one person to another.
If the prosecution were able to prove all of the above, the relevant offence charged would be one of assault. A serious or life-threatening sexual infection could amount to causing grievous bodily harm with intent, an offence under section 18 of the Offences Against the Person Act 1861 (‘the 1861 Act) in circumstances where intention can be proven, or the offence of unlawful wounding under section 20 of the 1861 Act, if only the lower evidential standard of recklessness can be proven.
Crucially, a person who does not disclose the fact that they have a STD and then has consensual sexual intercourse with another without informing that person of their infectious state is not guilty of rape. Instead, they would be guilty of an assault. [R v B  EWCA Crim 2945, CA]
Case law [R v Dica  2 Cr. App. R. 28; R v Konzani (2005) EWCA Crim 706] provides for a defence in cases involving recklessness (where the suspect cannot be shown to intentionally pass on the infection) - the defence of ‘informed consent’. This informed consent does not necessarily require the suspect to have directly disclosed their infected status, but can include circumstances where a third party has told the complainant about the suspect’s condition, or the complainant suspects that their sexual partner is suffering from a STD. Whether or not the complainant gave his or her informed consent would be a matter for the jury in a criminal trial.
Unsurprisingly, Arabella and Zain went their separate ways, romantically, after she publicly confronted him about his behaviour.
Many people may consider stealthing to be an unsavoury or unattractive thing to do, but are not aware that it might constitute rape. Stealthing can occur in a marital setting, as well as in more casual or spontaneous circumstances. It is becoming ever more important for sexual partners to communicate about their wants, needs and their limits when navigating the subtleties of sexual politics.
For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.
Leena Lakhani is a barrister in our Criminal Litigation team. Her defence experience includes dealing with a wide range of offences, from motoring offences, public order and common assault to cases involving serious violence, sexual misconduct and dishonesty offences.
She brings considerable prosecution experience, having advised on and appeared in trials and hearings relating to serious violence, drug offences, firearms and fraud offences. As a result of her experience, she has an extensive understanding of all stages of a criminal case.
Sandra Paul is a partner in our Criminal Litigation team. She has a wealth of experience in criminal and related litigation. The majority of her work concerns defending allegations of sexual misconduct. She works with clients in the UK and abroad, including allegations following the #MeToo campaign.
She has a particular passion and aptitude for working with children and young adults, navigating them safely through the youth justice system. Youth crime is a specialist area in which Sandra is a leader in her field.
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