Towards an extension of the jurisprudential definition of rape by surprise?

The act of a man removing his condom during sex and failing to warn his partner when his partner had made its use an express condition of the sexual intercourse is called stealthing. Depending on national legislation, the practice may be classified as sexual assault or rape..

In France the matter has not (yet) been brought before the courts. But the recent case law of the Court of Cassation suggests that there is only a small step to be taken to recognize the only qualification that suits it, that of rape by surprise.

The non-consensual removal of the condom during sexual intercourse is certainly as old as this method of contraception. But since the publication in 2017 of an article in the Columbia Journal of Gender and Law in 2017 ¹, “stealthing” has been the subject of a certain amount of media coverage in the general press ².

To name is to make exist. By being given a name, stealthing could be thought of and denounced as a specific sexual violence, which lies precisely in a rupture of consent not to the principle of sexual intercourse itself but to one of its modalities (the use of a condom).

This particularity would seem to hinder the qualification of rape or, at least, would place “stealthing” in a legal limbo. Examining the possible criminal characterizations of the non-consensual removal of the condom Alexandra Brodksy concludes that it is Rape-Adjacent, both legally and in it’s victims' minds.

In France, there is (to my knowledge) no case law directly dealing with stealthing, but the qualification of rape should be imposed. While there is no doubt that it can only be rape by surprise, it has yet to be recognized that surprise may relate to one of the modalities of sexual intercourse. A recent case-law of the Court of Cassation gives cause for some optimism in this respect.

Stealthing, a rape by surprise

In French law, rape is defined as “an act of sexual penetration, of whatever nature, committed on the person of another person or on the person of the perpetrator by violence, coercion, threat or surprise ³”. The legislator does not refer directly to consent, but provides for 4 means by which the perpetrator of a sexual assault is likely to override the consent of his or her partner: by violence, coercion, threat or surprise.

In this case, if “stealthing” can be considered rape, it can logically only be rape by surprise, since the practice consists precisely in forcing sex without a condom *without using any prior violence, coercion or threat. If the act requires discretion (stealth) on the part of the perpetrator, it is well and truly for him to act by surprise⁴.

But surprise in the legal sense is not to be confused with surprise in common parlance. A person may well be “stunned” by the advances made by a man 30 years older than he is, but the ensuing sexual intercourse does not constitute rape by surprise⁵. Legally, therefore, the notion of surprise is not a purely subjective feeling of astonishment but, close to fraud in civil law, it consists of a stratagem or gear designed to provoke the error of the victim⁶ who is therefore unable to give informed consent.

Surprise has been applied to cases of vulnerable persons with mental disorders or depression⁷, when the act is performed while the victim is asleep⁸ or when the victim is in a state of unconsciousness due to excessive consumption of alcohol, medication or narcotics⁹. More elaborate schemes are also sanctioned under the heading of surprise, such as sexual assault carried out under the false pretext of a medical examination¹⁰. In these cases, the surprise induces the victim into error on the very principle of a sexual act. But the surprise may relate to other elements, which are considered to be decisive for consenting or not to a sexual relationship.

A necessary and probable extension of the concept of surprise

Indeed, surprise can also lead the victim to engage in sexual intercourse by making error on the identity of his partner. Such was the hypothesis of an important decision of the Court of Cassation of 1857 in which it recognized that rape could occur by surprise, at a time when the Penal Code did not provide any definition of rape¹¹. In this case, a man had taken advantage of the darkness to slip into the bed of a woman thinking, in her half-sleep, that she was dealing with her husband.

More recently, the Court of Cassation has accepted that “the use of a stratagem intended to conceal the identity and physical characteristics of its perpetrator in order to surprise the consent of the person and to obtain from him an act of sexual penetration constitutes surprise within the meaning of the above-mentioned text ¹²”. In the present case, a 68-year-old man had published several advertisements on dating sites where he presented himself as a 37-year-old interior designer working in Monaco and in the guise of a model whose photos were easily accessible on the web. A young woman who had contacted him had agreed to meet him at home, blindfolded and, guided by his voice, to strip naked and join him in his room where his hands were tied to the bedpost. At the end of the romps, he removed his blindfold, revealing a “potbellied” and “crumpled-skinned” man.

By this decision the Court of Cassation seems to admit the principle of an error on the physical and social qualities attributed to the person. Such was the opinion of the Advocate General in this case, noting that “it appears from the findings of the examining magistrate’s chamber that consent was given not to a stranger but to an individual named I… B…, who was embodied in a history, a profession, a personality and a physical appearance, established by photographs”. In so doing, the Criminal Chamber admits that the error may relate to qualities attributed to a person, since these qualities are decisive in determining the victim’s consent to have sexual intercourse with him.

The same should apply to the use of condoms. And even more so, inasmuch as, in the aforementioned judgment of 23 January 2019, the victims had not expressly and previously affirmed the decisive nature of the physical and social qualities of the sexual act (it was the Court of Cassation that affirmed this), whereas in stealthing" the wearing of a condom - not being considered as the norm for sexual intercourse - had to be clearly required by the victim.

Therefore stealthing should be regarded as rape by surprise in the same way as any manoeuvre leading to misleading a victim about a condition for sexual intercourse expressly stated as such by her. This subjective conception of surprise in criminal law is not new and can be compared to fraud in civil law: " *error, deceit and violence vitiate consent when they are of such a nature that, without them, one of the parties would not have contracted or would have contracted on substantially different terms¹³".

The law of rape is the subject of important debates, to which magistrates are not insensitive. In the judgment of 23 January 2019, the Advocate General noted that “the debates on positive law concern in particular its capacity to punish acts committed against a person who has been unable to give free and informed consent”. This attention to the free and informed nature of consent, assessed in concreto, should lead courts to see stealthing for what it is.

But this optimism about the possible qualification of stealthing as rape should not obscure the difficulties of proof : proof of the act of sexual penetration of course, but above all proof of the non-consensual withdrawal of the condom with full knowledge of the facts. It is therefore up to the victim to show that her partner was aware of the requirement to wear a condom and that he withdrew it during sexual intercourse.

In criminal law, and especially in the area of sexual assault, it is one thing to criminalize behaviour, but it is quite another to effectively punish it.