Someone could be convicted for rape even if their partner originally consented to sex (Picture: Getty)

A man could be convicted of rape even if the woman agreed to have sex, judges have ruled.

He would still be guilty if he did something she asked him not to, a High Court panel led by England and Wales’ most senior judge decreed.

A man would no longer be said to have consent because he ‘deliberately ignored’ the limitations put on sex, it was decided.

The ruling follows a test case involving a wife who claimed her husband broke their agreement by failing to withdraw.


The judges backed her, saying she ‘was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based’.



They added: ‘Accordingly, her consent was negated.’

The couple, who wed under Islamic law, had sex after agreeing he would withdraw because she was ‘adamant that she did not want another child’.

But the husband went back on his word, making her pregnant.

He gave her ‘no chance to object’ and insisted ‘I’ll do what I want’, the panel, led by lord chief justice Lord Judge, heard.

Prosecutors originally decided not to charge him with rape or sexual assault, claiming it would be ‘impossible to prove’ his actions were not ‘spontaneous’.

They were told to review their decision after the judges decided it fell ‘within the statutory definition of rape’.

However, Lord Judge said that men who tried in vain to withdraw in time should not be pursued for rape, adding: ‘These things happen – they always have and they always will.

‘No offence is committed when they do. They underline why withdrawal is not a safe method of contraception.’

The ruling came a day after a small rise in the number of successful rape prosecutions, was revealed.

Campaigners say just 15 per cent of victims report attacks.

Following publication of this story, we have been asked to make clear that the judgment of the High Court was specific to the facts of the case we reported. While a wife initially had not objected to sex, she was subsequently ‘deprived of choice’ with the consequence that ‘her consent was negated’ by the acts of her husband and his ‘abusive dominance’. The husband now faces prosecution for rape following the court’s ruling that, if he deliberately ignored his wife’s wish that he withdraw before ejaculation, she had not consented to sex.