Rape: deceit, stealthing and infertility

By M Burman

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On the 23rd July 2020, the UK Supreme Court ruled that lying about infertility was not rape. When I raised this issue with my sister, a law student (though she has since dropped out, which may be a good thing), she said that rape was when a person penetrated another without consent, and thus if the victim had consented to sex, lying about infertility was not rape. By the 2003 Sexual Offences Act, this isn’t far off the mark. The Sexual Offences Act of 2003 states that:

A person (A) commits an offence if—

• (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

• (b) B does not consent to the penetration, and

• (c) A does not reasonably believe that B consents.

There are, firstly, a few issues that need addressing in this definition. It assumes men hold a monopoly on committing rape, and by implication, the definition negates the possibility of women raping men or other women. Secondly, it denies the possibility of oral rape by restricting it to penetration by the persecuting party. Most importantly, such a black and white definition doesn’t allow for the easy persecution of more nuanced forms of sexual violence.

Disregarding the conditions of sex laid out before or during intercourse is one such form of sexual violence against women. Switzerland’s landmark 2017 prosecution of a man who had stealthed his victim was the first case of its kind and gave a platform for debate on conditional consent. The condition to consent, in instances where stealthing has happened, is that all precautions are taken to stop the risk of pregnancy and/or transmission of disease. When a condom is removed without the consent of the other party, the terms and conditions set out have been breached. It is the same concept as if one party agreed to oral sex and the other started performing penetrative or anal sex on them. The 2017 Swiss case was a prerequisite to any case brought in the UK, yet its effect upon Europe is such that stealthing is recognised in the UK, and other European countries, as a form of sexual assault.

When a person consents to sex on certain conditions and those conditions are abused, it is rape. And so, when Jason Lawrence lied, telling a woman he was infertile so that she agreed to have unprotected sex with him, he committed an act of rape. The conversation about protection ahead of intercourse is a clear indicator that the victim would not have had sex without a form of contraception if she thought there was any chance of conception. Though not as explicit as agreeing to sex only if a condom is used, the terms of consent were similarly set down: unprotected sex on the condition that pregnancy was impossible. After two acts of sexual intercourse, Lawrence left and texted the victim informing her he was still fertile. She took emergency contraception in the days afterwards and had an abortion after becoming pregnant. Lawrence’s appeal was won on the defense that, instead of setting out conditions ahead of sex that were subsequently abused, Lawrence had abused the risk of outcome. The issue wasn’t the sexual act itself, it was what the sexual act led to.

And yet, how is this different from stealthing? Wearing a condom severely minimizes the chance of pregnancy and the transmission of disease. Removing a condom without the awareness or consent of the other party changes the risk in the outcome of the act. The only difference between stealthing and lying about infertility is that, when consenting to sex without a condom, whether or not there is any chance of pregnancy, you are consenting to the risk of contracting sexually transmitted diseases. When an individual is stealthed, after setting out the conditions to sex such that a condom is used, consent to the risk of contracting an STI has not been given. The implication is that, in the eyes of the law, contracting an STI is a greater concern than a pregnancy the victim believed was impossible.

In trying to make sense of why one form of sexual deceit is legal whilst the other is considered as serious as rape, there must be something to be said for the fact that pregnancy is something that happens exclusively to women, whilst both men and women are affected by STIs and STDs. It is easy to take this and conclude the law and judicial system are inherently patriarchal. Though it is true only two of the twelve Supreme Court Justice’s are women, both female Supreme Court Justices ruled in favour of Lawrence. Presumably, therefore, the issue here isn’t inherent or institutional sexism.

It is more likely that the discrepancy merely reflects the anachronism of the judicial system in the UK, as the recognition of stealthing as rape was a precedent decided by a jury in a criminal court in Switzerland, whereas the ruling on infertility was a Supreme Court decision. The homogeneity of age in the Supreme Court is telling. The youngest justice is soon to be 59, and the eldest, 68, is not due to retire for another year. It requires so much skill and experience to be appointed as Supreme Court justice that, by the time they are on the bench, their ideas are of another generation. For a supreme court judge who is nearly 70, it was not that long ago that non-consensual sex in marriage was not considered rape. What rape is, by the standards of society, has changed and adapted as awareness of sexual violence has become more mainstream, particularly on social media which has created a platform for discussions on rape to take place. It is telling that the fourth wave of feminism took place on social media, whereas the second wave took place in the court and parliament. It is no wonder a Swiss jury, which may consist of jurors as young as 18, convicted a man for stealthing. It is no wonder a jury in the UK, which, similarly, may consist of jurors as young as 18, convicted Jason Lawrence for lying about his infertility in order to have unprotected sex with his victim. Appeals to the Supreme Court, it seems, are loopholes for sexual offenders in instances of implicit sexual violence. With the composition of the Supreme Court as it currently is, it is not a suitable place for cases related to sexual violence.

But, the Supreme Court Justices are the most skilled legal members in society, and it would be a mistake to lower the age of retirement for Supreme Court Justices so that such archaic views aren’t on the bench. Their expertise (in areas other than issues of sexual violence, it seems) is paramount. Instead, a tribunal for appeals specifically for rape cases should be established, or even putting trials in front of the jury in instances of appeal, would be better protection of women’s rights’. Having said that, the treatment of women by the judicial system is so machiavellian that I doubt many women would want a retrial. The suicide of teenager Lindsay Armstrong, in 2002, two weeks after the trial of her rapist which saw his barrister ask her to hold up her thong in court, of a 19-year-old girl during the trial of her rapist in 2016, and of 48-year-old Frances Andrade a week into the trial after being called a ‘liar’ and a ‘fantasist’ by her rapist’s barrister, evidence the systematic failure of women by the judicial system at every level. The judicial system in the UK needs radically reforming before it can be a protectorate of women’s safety and sexual freedom.