A man who removed a condom during sex without his partner’s knowledge has had a rape conviction commuted to a less serious sexual offence. But the original year’s suspended prison sentence still stands, according to an appeal court.

The 48-year-old French national was brought to trial after ignoring his partner’s demand for safe sex during otherwise consensual intercourse. He had removed the condom in the hope of ejaculating into her mouth, the court in canton Vaud heard. When she refused, he continued intercourse without replacing the condom.

The woman later suffered distress and anxiety worrying about contracting a sexually transmitted disease and underwent HIV preventative treatment. The man had refused to tell her the results of a blood test he had taken. The offence took place as the couple were on their second date, having met on the dating app Tinder. 

In January, the federal criminal court in Lausanne found the man guilty of rape and applied the suspended prison sentence. On Monday, the Vaud court upheld the same sentence but ruled it was not rape as no coercion had taken place.

The court rejected as a “smoke screen” the defendant’s claim that the condom had broken and that he had forgotten “in the heat of the moment” to replace it with a new one.

The defendant has not ruled out appealing the verdicts further, according to the Swiss News Agency.