CLAIM: UK Court sentenced Zim man Guy Mukendi (39 years old) to 4 Years & 3 Months In Prison for ‘stealthing’ after removing condom without consent.
SOURCE: Various Media Reports
VERDICT: Partly False
A British man, Guy Mukendi, has gone viral after being convicted of ‘stealthing’, taking off a condom during sex without consent.
Non consensual condom removal is classified as rape under UK laws.
This is premised on consent, which states that ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice’.
While is is true that Mukendi has been sentenced to 4 years and 3 months for this offense, the question for this fact check is whether he is Zimbabwean or not.
He has been identified as Zimbabwean on social media here and here, as well as by local mainstream media here and here.
Interestingly, none of the UK papers identify him as Zimbabwean, only referring to him as a London man from Brixton.
It is, therefore, unclear how Zimbabwean mainstream and social media came to identify him as one of their own.
Is the surname Mukendi Zimbabwean?
According to Forebears, an online name search engine, Mukendi is the 6,228th most common in the world, most prevalent in the Democratic Republic of Congo.
It further states that the incidence of the Mukendi surname is 1 in over 15 million in Zimbabwe in contrast to 1 in 822 people in the DRC.
Examples are Henoc Mukendi, former Congolese footballer, Jeremie Mukendi, an English footballer with both British and Congolese citizenship and Ilunga Mukendi, a Congolese rugby player.
While this particular Guy Mukendi could be the 1 Mukendi who is Zimbabwean, the evidence says otherwise.
Guy Mukendi, born on 29 November 1984, was granted asylum in the UK in 2002 on appeal after his initial application was dismissed. The appeal document reads, ‘This is an appeal by Guy Mukendi, a citizen of the Democratic Republic of Congo (DRC) against the determination of an Adjudicator (Mrs S Kebede) who dismissed his appeal against the respondent’s decision made on 27 March 2002 giving directions for his removal following the refusal of his claim for asylum’.
His date of birth is given as 29 November 1984, though this was in dispute during the initial asylum hearing; ‘The appellant was born on 29 November 1984 or so he asserts. The Secretary of State did not believe that this was the appellant’s true date of birth. He treated the appellant as an adult and he was interviewed about his claim on 21 March 2002’.
The sentencing document also puts his age at 39 years old.
What you might need to know about Conditional Consent
Conditional consent is a developing concept in the UK. It includes but is not limited to non consensual condom removal.
UK law experts Reeds say that the offense covers a non-consensual act against the conditions of consent given.
This can include actions such as condom use, material deception as to gender by the suspect or removal of any agreed protection/contraception during intercourse.
In such cases, it is said that ostensible consent was not true consent, either:
- because of a material deception perpetrated on the complainant by the suspect (other than one which falls within section 76); or
- because the suspect failed to comply with a condition which the complainant imposed on the giving of his/her consent (which involves a deception by the suspect from the moment he/she made decision not to comply with the condition).
In the cases that have been prosecuted and convicted involving conditional consent, the key points from these cases are:
- There must be ostensible consent at the relevant time, usually at penetration,
- There must be a deception, other than one which falls within section 76 of the Sexual Offences Act 2003, or a condition upon which the complainant agreed to the act,
- Prosecutors should avoid defining the “concept” of conditional consent by reference to the topic or subject matter of the condition or deception in question, as these cases are no more than examples of the need to apply all relevant context when deciding issues of free choice under section 74,
- A condition or deception is an important part of the context but not all of it. Whether consent was absent may well depend on other contexts,
- The evidence relating to “choice” and the “freedom” to make any particular choice must be approached in a broad common-sense way,” [Lord Judge CJ in F], and
- The imposition of conditions embodies personal sexual autonomy which section 74 was intended to provide. Their contextual importance derives, in part, from the fact they represent positive choices made by a participant to sexual acts about which another participant can be in no doubt.
Conclusion
The claim that has been going viral that a ‘UK Court sentenced Zim man Guy Mukendi (39 years old) to 4 Years & 3 Months In Prison for ‘stealthing’ after removing condom without consent’ has been rated as partly false. It is true that Guy Mukendi, 39, has been sentenced by a UK Court to 4 years and 3 months in prison. He was convicted of rape since the law defines non consensual removal of a condom during sex as rape. This means that while the offense arose from ‘stealthing’ he was actually convicted of rape and will be placed on the sexual offenses register.
It is, however, false that he is Zimbabwean. Before being granted asylum in the UK in 2002, Mukendi was Congolese – having been born in the DRC.
