By Rachel Menashe
“Stealthing,” the act of non-consensually removing one’s condom during sex, came to my attention in 2017 when the issue went viral in the online-feminist space. The fact that this act has a name immediately signaled to me its grotesque ubiquity. More than just an assaultive practice, stealthing is a community. Internet-users have dedicated entire webpages to explaining the best ways to stealth, creating forums wherein stealthers can discuss effective techniques (did someone mention mens rea?). For those of us with even a loose grasp on the concept of consent, stealthing clearly destroys any consent given to a sexual encounter with condom use. When one consents to sex with a condom, that person is consenting to a sexual encounter in which they can be confident they are mitigating the risk of sexual transmitted infections, diseases, and unwanted pregnancy. Once the safeguard that ensures that confidence, the condom, is removed, the consent goes along with it. And what is non-consensual intercourse? Sexual assault. Despite this, stealthing is not defined in any United States jurisdiction as a legal wrong nor has it been recognized by any of our courts as such.
In her piece, “Rape-Adjacent”: Imagining Legal Responses To Non-Consensual Condom Removal, Alexandra Brodsky accounts interviews with victims of stealthing, and their experiences all amount to the same thing: a consent violation. One woman she interviewed described that she clearly told her sexual partner that wearing a condom was “non-negotiable” before their sexual engagement began.[1] Despite this, he removed his condom during their encounter-turned-rape. She recalled that although she expressed how wrong what her stealther had done was, he simply told her “not to worry about it.” This story illustrates a barrier to understanding stealthing as sexual assault. The man who removed his condom took no accountability for the magnitude of his action and its implications on his victim’s health, dignity, and well-being. Finding stealthing to be legally wrongful would be to recognize it as purposeful assault on one’s body and autonomy, something stealthers could no longer assert confusion about. We must stop coddling sexual assaulters as woefully reckless and blaming unclear laws about what rape is and isn’t. Consent matters; it is non-negotiable.
Though the United States and its territories have failed to make stealthing actionable, other jurisdictions have recognized it as assault. In December of 2017, a Berlin court found a man—a German police officer—guilty of sexual assault after he ignored his partner’s “explicit request” to wear a condom.[2] The victim did not realize the man had not been wearing a condom until their encounter was over. The man received an eight-month jail sentence and a fine. Likewise, a Swiss court convicted a man of rape after he removed his condom unbeknownst to his partner, and the Supreme Court of Canada “upheld a sexual assault conviction of a man who pierced holes in a condom without his sexual partner's knowledge.”[3] Further discussions need to be had about which punitive measures are appropriate, but these courts were justified to uphold stealthing as sexual assault. If we are serious about protecting women’s sexual safety, we must follow their lead.
Stealthers should not feel safe. Let’s say it until the law recognizes it: stealthing is sexual assault.
[1] Alexandra Brodsky, “Rape Adjacent”: Imagining Legal Responses to Nonconsensual Condom Removal, 32 COLUM. J. GENDER & L. 183, 184 (2017).
[2] Matthew Robinson, Police Officer Found Guilty of Condom ‘Stealthing’ In Landmark Trial, CNN (Dec. 20, 2018), https://www.cnn.com/2018/12/20/health/stealthing-germany-sexual-assault-scli-intl/index.html.
[3] Id.