Malta, consenso violato: il confine invisibile del reato di stupro

Maltese law on rape is based on consent. The law was revised in 2018. Photo: Shutterstock.com

A woman whose partner ignored her request not to ejaculate inside her during otherwise consensual sex has sparked an online debate as to whether or not that constitutes rape.

And several criminal lawyers agree that the clear lack of consent to the full act meant that this was, in fact, rape under Maltese law.

The legal debate was sparked following a post shared anonymously by a woman on the Facebook group Women for Women. The woman shared how, in a previous conversation with her boyfriend, she had mentioned having a baby and told him he could ejaculate inside her. But sometime later, before they had sex, she told him she changed her mind.

However, when they were having sex, he told her he was about to ejaculate inside her. She told him not to. But he did so anyway.

“I said: ‘no I don’t want you to’ and he did it anyway – is this considered rape?” she questioned.

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Lawyer and activist Lara Dimitrijevic said: “Our law on rape is based on consent and no longer on violence as it stood until 2018.

“In this situation, there was consent for intercourse, however, there explicitly was no consent to ejaculation during the act of intercourse.

“Moreover, he was fully aware of the lack of consent and in fact made it clear that he is intentionally ignoring her lack of consent and proceeded with the act.

“Therefore, the argument here is: could there ever have been consent if he intended to ejaculate against her wish? There is definitely a violation of self-determination and bodily integrity. My legal reasoning would say, no the act was not consensual and therefore tantamount to rape. I akin the act as that of stealthing which is a form of rape.”

Several other lawyers contacted by Times of Malta agreed. Lawyer Stefano Filletti, head of the Department of Criminal Law at the University of Malta, was in agreement.

As did seasoned criminal lawyer Veronique Dalli who insisted: “Once consent is withdrawn – then it’s withdrawn.”

In this case, the second the woman said ‘no’, she was withdrawing her full consent.

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What did she expect?

But despite the legal arguments made, some people commenting on the Facebook post asked what was the woman expecting.

One woman said: “What I still cannot understand is that she started to tease him and even joked that she didn’t mind having a baby… Then during the act, she said stop. I totally agree that if she said stop, it’s a stop – full stop – but on the other hand, certain behaviour shouldn’t be acceptable either from our side as women.”

How many unwanted pregnancies for someone else’s pleasure?

Another person commented: “I suggest that Dr Lara studies the science behind arousal for both sexes”.

But most sympathised with the anonymous woman with one commenting: “How many women have passed from the same experience and never spoken? How many unwanted pregnancies for someone else’s pleasure?”

Manifesting control over a woman

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And this is exactly the point – one that was explored in the UK courts a decade ago.

, the BBC reported how a High Court ruled that a woman who agreed to sex might still be the victim of rape – so the police had to investigate her claims.

Like the case shared on the Women for Women platform, there had been consensual penetration, but the man ignored the woman’s demand that he not ejaculate.

The ruling said: “She believed that he intended and agreed to withdraw before ejaculation. (He) knew and understood that this was the only basis on which she was prepared to have sexual intercourse with him.”

The court found that by ignoring her wishes, he “manifested his control over her” and did not give her “any chance to object”.

The woman got pregnant.

“She was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based,” the court ruled.

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Maltese law on rape is also based on consent.

Malta revised its criminal code in 2018 to make the lack of consent a constitutive element of sexual offences. Before that, the law refined rape as carnal knowledge (sexual intercourse) achieved through violence.

According to Article 198 of the criminal code in its current form, rape is defined as engaging in non-consensual “carnal connection”, that is penetration.

The law also lists elements of coercion that include force, bribery, deprivation of liberty, improper pressure or any other unlawful conduct… and deceit.