Failing to ensure personal health and safety is not rape. It may still be a crime, but rape is "forcing someone to have sex against their will", not "increasing their risk of being infected with an STD or falling pregnant".
The latter, as I've said, may still be criminal. But it's not rape.
I think that maybe legal system has, at least conditionally, accepted that having sex under false pretenses may qualify as rape.
The logic being applied here is that she consented to protected sex, not unprotected sex. If we want to split hairs over whether that distinction is meaningful, let's look at a couple of example scenarios:
1. Someone convinces a blind woman that he/she is her partner and has consensual sex with her. Is this rape? Did she only consent to sex with her partner, making the sex non-consensual? Or did she consent to sex with the person in the room with her, making this consensual sex?
2. A woman consents to sex, thinking that she is talking about vaginal intercourse. Her partner penetrates her anally. Did she consent to 'sex' in a general sense, so the specifics (anal vs. vagina) are not really important?
That's interesting, I didn't know that. Seems a bit perverted to expand the definition of rape like that - they should perhaps come up with a different term.
Number one is tricky. I don't know what the answer is there. My gut tells me that should be rape. But if I think about it, I think that's because the consent was never given to that person.
On the second one, I think most people are capable of telling the difference between whether they're having anal or regular intercourse, and, forgive me for going into details, but unless you're having exceptionally vigorous and violent anal sex, it's not like it's going to just "go in" unnoticed. There will at least be a brief period of, erm "engaging".
At that point, the recipient can just say "no". If they say "no", and the other person continues anyway, it's rape. Otherwise, I would think that consent is implied...*
* unless the perpetrator has threatened violence if the other person says no, obviously, in which case it's a whole different kettle of fish.
He ties her up and blindfolds her (maybe she's
into bondage). She consents to only be penetrated
by a sex toy. He lies to her, and penetrates her
with himself instead. She doesn't notice until
later. Consent or non-consent?
Personally, I don't think that "as long as it's something un-noticable to her during sex[1], then it's not rape, just a lie," is the bar for deciding if it's rape or not. I don't think that it should be taken to the extreme (e.g. "he lied to her when he picked her up at the bar by saying he was a doctor making lots of money" shouldn't be rape), but with regards to the things specific to the action itself, I think that it matters.
[1] i.e. she doesn't realize that there is no condom
It's an interesting thought experiment. Here's my counter-scenario:
She agrees to have sex only if he doesn't come. Unfortunately, he gets over-excited and comes anyway. She obviously doesn't notice until it actually happens.
In this scenario, he obviously has breached the initial conditions. Is that rape though?
I'm certain that Swedish law does not use the term "rape", but some Swedish word. That may or may not have a slightly different meaning, or different connotations.
The latter, as I've said, may still be criminal. But it's not rape.