Is the Female Condom with Teeth coming to the US?

Consumer protection, Healthcare, Rights, Safety

Last week, Dr. Sonnet Ehlers, a South African doctor began distributing a new type of female condom in the various South African cities where the World Cup soccer games are taking place. Officially called Rape-aXe – but also described as the anti-rape condom – the inside of the condom is lined with jagged rows of teeth-like hooks that will attach on a man’s penis during penetration. The new condom was patented three years ago, and Ehlers hopes to begin selling it in South African pharmacies and grocery stores soon.

Human Rights organizations report that South Africa has one of the highest rape rates in the world, but we all know it’s a crime that spreads across the globe.

Would it be possible for such condoms to come to the United States?

We asked criminal defense attorney, Robert Perez, with the Law Office of Robert Perez in Seattle, Washington.

Avvo: Could the anti-rape condoms be legal in America? You would think there’s nothing wrong with hurting a rapist, but on the other hand, it’s illegal in the United States to have a shotgun booby trap, and, in a way, isn’t this a sort of booby trap?

Mr. Perez: Criminal assault requires criminal intent. If a woman inserts something in her that is designed to protect her by causing harm to an attacker, I would argue that she is acting in self defense and not with criminal intent. I also think any jury or prosecutor would agree. On the other hand, if she makes herself available for intercourse and fails to disclose the device, knowing that someone could be injured, I think you could show criminal intent. A lot will depend on the woman’s intent. I don’t think it’s a good idea to booby trap the vault, but I also can understand the desire to protect one’s body from that kind of assault.

Avvo: What if a woman is in a bad relationship, where unfortunately she is repeatedly a victim of rape. Perhaps using this device could be a way to finally make it stop. However she would know ahead of time that it would hurt her partner. How do you think this case would play out?

Mr. Perez: Self defense is typically only available to protect against a reasonably perceived “imminent” injury. Pre-meditated actions designed to inflict injury are rarely found to fit the legal requirements of self defense. That said, these definitions will ultimately be subject to the common sense sensibilities of jurors, who will typically cut a real victim a lot of slack. Another way to think of this is that, in addition to the legal trial that is formally in play, there is often a “meta-trial” underway as well, in which the two respective parties are evaluated on considerations other than (or in addition to) strict legal criteria. If the jury is “with” the defendant, they may nullify a legally appropriate verdict and find in her favor. If, on the other hand, a jury is “with” the alleged victim, even a legal defense may not be enough to prevent a conviction. The attorney must pay attention to the meta trial in addition to the legal trial.

Avvo: What if a woman used it to get back at an ex?

Mr. Perez: Again, intent is key (and, again, the relative merits of both sides will inform the meta trial). All things being equal, a woman who “arms” herself with such a device in order to “get back” at an ex will probably be viewed in the same light as someone who, knowing they have AIDS, has sex with an ex in order to “get back” at them. If their intent is to cause a harmful contact, they will be legally liable for an assault. Whether the jury will convict them is a separate question that will be determined by considerations affecting the meta trial.

Avvo: For these condoms to even become available in the US, would they first need to be approved by the FDA?

Mr. Perez: This is not my field, but I do know that the FDA regulates latex condoms as medical devices. It is my belief that the South African device would fall within the FDA’s jurisdiction and would have to go through the usual random spot checks that they employ in the testing of latex condoms.

Avvo: Any thoughts on some claims that using this device would only further anger the attacker, causing more harm for the victim?

Mr. Perez: Any act of aggression will always have the potential to aggravate an emotional situation and ratchet up the danger. Sexual intercourse is already ripe with emotion and a rapist in the act is probably already on a hair-trigger emotional ride. Anyone employing the South African device is likely to risk the same sort of danger that one would expect for a woman who is orally raped and decides to bite her attacker. I think it’s a risky move and I would not advise it, but then I’ve never been in that situation and I probably can’t fully appreciate the trade-offs involved.

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