Being a legal question I know the answer may vary by jurisdiction, but for whatever reason I was thinking yesterday about the idea of someone having unprotected sex and got to wondering. Say Person A consents to sex with Person B provided that Person B wears a condom. Person B agrees but then unknown to A initiates the intercourse wihtout the condom. Since consent was contingent on condom usage (and assuming any other statutory required elements are present) is Person B guilty of sexual assault? No real world examples that I know of led to the question but if there is case law I’d be interested.
I’m going to have to say no to rape. Breach of contract, maybe. But damn hard to prove. Can you prove that I wasn’t wearing a condom when I had sex with you?
I agree; rape is a specialized area of the law and has its own rules; consent to intercourse is probably not legally the same animal as consent to other agreements, and the drastically different penalties involved between rape and breach of K (prison, societal scorn, and registry in a sex-offender database vs. being required to make up the difference, to the extent it is economically measurable) mean that the two should not be analogized. (N.B. the stringent requirement that there be no penalty clauses in contracts.)
–Cliffy, Esq.
P.S. Please note – this is a wild-assed guess. I’m not licensed in your jurisdiction and I have no idea whatsoever what a real court would do in this situation. You are not my client, I am not your lawyer.
Another WAG (not looking anything up, definitely not checking your jurisdiction), there might be some level of civil battery. And it might (depending on how quickly person A acted) be possible to show that it was more likely that person B wasn’t wearing a condom than not.
But, my guess would be that it probably wouldn’t reach a statute’s definition of rape.
(usual disclaimers)
A slight variation on this: a few years back (sorry, no cite, but it was all over the news then) a man randomly assaulted and raped a woman. However, he attempted to argue that it was not rape, because the victim asked him to put on a condom before penetrating her (fearing disease, pregnancy, etc.). So he put one on, and then committed the attack. His defense was that because she asked him to put on a condom, she was allowing the sexual act to take place.
I do not remember what the court’s verdict was on this defense, though I would hazard to guess it was against the rapist.
Another WAG, but if going condomless resulted in the transmission of a disease or in a pregnancy, she would have legal recourse in a civil suit/child support case.
I wouldn’t discount out of hand the possibility of a rape charge, either. Did she voice her fear or disapproval of sex w/o the condom before or during the act? Certainly; she made that a condition for sex and probably objected during, as well. Did she attempt any physical resistance to the sex? She might also be able to get the creep listed as a sex offender and subjected to monitoring under Megan’s Law; and if the offender is a college student, there’s a chance she might be able to get him expelled, or strip him of any financial aid/scholarship packages.
It happened in Austin, Texas, USA about 10 years ago. I don’t remember the final outcome either, and am having a hard time finding any “final verdict” information on the case. I’ve only found a few mentions of the case existing.
How about a situation that my girlfriend had years ago… her and her roomate picked up a pair of guys, and each retired to their hotel rooms…
My girl was awoken in the dark room, thinking her date was getting amorous. She proceeded to engage in sex, and then realized halfway through that the airmen had switched rooms.
Rape? She thinks so, so do I… but her roomie, whose apparent idea it was, never thought of it that way.
Note: this was years ago, and she has since moved out of state and hasn’t spoken with said roomie in years and years. We’re just curious…
I think that if both agree to have sex (with or without condom) there can be no rape.
I’m no lawyer, but I’d say so Tristan…
different person = different event
In my city about ten years ago there was a guy who would somehow get women’s phone numbers after he had located their homes, call them and convince them (without actually saying so) that he was their SO and get them to participate in a sex game where they unlocked their door, tied themselves blindfolded to the bed. he would come in and have sex with them and leave. imagine the woman’s suprise when she told her SO about how much she enjoyed his kinky little caper the previous night…he was eventually caught, but not charged with rape because he never actually said he was who he wasn’t. He would say “who do you think this is” when they asked and things like that.
As far as the case of the changed rooms being rape, I think not. The guy had legitimate reason to think that the girls were willing for a swap being that one of them suggested it. She sounds rather silly anyway. “it was ok that i was having sex with this stranger i’d never met, but when they swapped and i was having sex with a different stranger, thats rape” sorry, don’t buy it.
back to the condom question. i dont consider it rape either. i do consider it wrong though, but I’m not sure about legal consequences. How about this scenario: A girl and guy are going to have sex. He goes to use a condom, and she tells him she doesnt have to, she is on the pill, has her tubes tied, can’t have children, whatever. What really is happening is girl knows his family is loaded, and she is fertile right now and this looks like a good way to land some easy money. They do it, now he is stuck paying 20% of a considerable income to a woman with whom he never intended to have a child with. Shouldnt this be illegal?
I remember this case and the jury didn’t buy his bullshit. He was convicted of rape.
Haj
You’re joking, right? The semen might be a clue.
Haj