Man Convicted of Rape for Removing Condom During Sex

World

The definition of rape seems simple enough, but in North America, the lack of consensus makes legal proceedings very difficult. This isn’t the case for the Swiss Criminal Court in Lausanne.

In a landmark legal case, Switzerland has convicted a man of rape after he secretly removed a condom during sex without his partner’s consent. The 47-year-old Frenchman (who has not been named publicly) met a Swiss woman through Tinder. On their second date back in June 2015, they started having sex with a condom, but the woman only realized it had been removed afterward without her knowledge or approval. The convicted man claimed that the condom tore when he was putting it on, but when the woman learned he had proceeded with unprotected sex with her, she alerted the police.

This seems pretty extreme at first glance, and I will readily admit that I thought it seemed an overreaction on the first readthrough. However, taking into account the explicit way many European countries, such as Sweden and the UK, clearly define rape and sexual assault, this becomes easier to understand. This is still a first for Switzerland, but it’s an interesting evolution.

Our understanding of consent has grown over the last few years, largely due to feminist activists, anti-sexual violence rhetoric, and online education campaigns. Although this hasn’t eliminated rape and sexual assault, it’s helped us come a long way to defining what constitutes non-consensual sex. However, our criminal justice system often fails victims of these crimes. Out of every 1000 rapes, only 310 are reported to the police, 57 reports lead to arrest, 11 cases get referred to prosecutors, 7 cases lead to felony convictions, and 6 rapists will be incarcerated. Of 1000 rapes, 994 perpetrators will walk free. This is in stark contrast with other European countries. Although crime statistics show high rates of rape in Finland, Sweden, and the Netherlands, further analysis shows that these increased cases of sexual assault are almost entirely a reflection of these countries’ definitions of sex crimes. As Doug Saunders from the Globe and Mail writes:

“Imagine, for example, if your boss rubbed against you in an unwanted way at work once a week for a year. In Canada, this would potentially be a case of sexual assault. Under Germany’s more limited laws, it would be zero cases. In Sweden, it would be tallied as 52 separate cases of rape. If you engaged in a half-dozen sex acts with your spouse, then later you felt you had not given consent, in Sweden that would be classified as six cases of rape. The marked increase in rape cases during the 2000s is almost entirely a reflection of Sweden’s deep public interest in sexual equality and the rights of women, not of attacks by newcomers.”

The Swiss federal supreme court handed down a suspended 12-month sentence for the crime, and sparked a plethora of debate in this new territory of rape law. There has never been a guilty verdict and sentencing in such a case before, but it warrants much discussion.
“This comes down to a discussion about ‘conditional consent,’” said Dr. Sinead Ring of the University of Kent. Ring refers to the Sexual Offences Act 2003, and in particular, section 74 of the official legal guidance to the act- this portion covers conditional consent.

That’s really where this began to make sense in my head. I originally thought classifying this as rape degraded the severity of rape charges, but the fact is, the woman made it clear- and proved in court- that she did not want to have sex without protection. If, in a hypothetical scenario, the couple was having sex and the man proceeded to stop and ask if he could remove the condom, she would have said no. If he removed the condom and continued, then the sex is no longer consensual. That is rape. In the real circumstance, the man did not even stop to have that conversation with the woman. Theoretically, what if he had tested positive for an STI? Or what if she got pregnant as result of his actions? She didn’t consent to any of that. The Swiss court’s finding is revolutionary, but it makes plenty of sense.

What this verdict really opens up though, is the whole debacle involving Wikileak’s Julian Assange. Before he was hiding out in the Ecuadorian embassy, Assange was accused by two women of intentionally tampering with or removing condoms during sex without their consent. Swedish prosecutors issued an arrest warrant for him back in August 2010, but he has defied the summons and published his own account of events. He maintains that he is “entirely innocent” of the allegations against him, and strongly believes the charges are politically motivated. As he continues to stay in the Ecuadorian embassy, it doesn’t appear as though we will be able to see how this plays out in court for awhile. Assange has already escaped three of the four charges as the financial strain of a long legal battle for some of the victims became an issue, and the deadline for bringing charges has expired. If he truly is as innocent as he claims, it’s unfortunate that he won’t have the chance to prove that in court.

Many women would not, under the condom circumstances, press rape charges. Not necessarily because they were ignorant of the law but because there is always this fear of adding to the myth of “crying rape” accusations. We don’t want to undermine, or muddy the waters for victims who have had more traumatic rapes. There’s this mental categorization of rape the public tends to perform: classic rape, violent, marital, sort-of, technical and maybe. Especially as a woman, I can tell you this is unspoken but true distinctions we all make, but we should never tell someone how serious or unserious her/her/their experience was. However, a lot comes down to what can be proven in court. So many things have to go right for a criminal case to secure a conviction, and even then, sentencing may not be reflective of what pain was caused. Even in Switzerland, only one in three rapists is locked up. So although this Frenchman was convicted, his 12-month suspended sentence means he gets to have time to perform a probationary period instead of jail time.

This isn’t meant to be a discouragement though. This case is revolutionary. With verdicts like this, the steps to continuing education about rape and consent is gaining the traction it deserves. It gives us hope that we as a nation can move forward. Yes, it may be a suspended sentence, but the man got convicted and actually punished for removing his condom. Over here, American judges are still debating over what constitutes rape. And in the case of famous Brock Turner, despite being found guilty of forcibly penetrating an unconscious woman, only sentencing the criminal to a mere 3 months of jail time. We have a long way to go to reach the same level of maturity and understanding of sexual assault. Our government is still dictating what a woman can and cannot do with her reproductive organs, for fuck’s sake. With a promised ultra-conservative nominee for the Supreme Court, our fight to have simple rights is going to be an uphill battle. But we, as a community, need to keep ourselves informed to not only protect ourselves, but others as well so victims of these terrible crimes can find some form of justice.

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