Headlines are bursting with reports of past victims of sexual assault and harassment—victims who are now coming forward to name high-profile perpetrators. Joining them are casualties of a newer but equally disturbing trend of sexual violence: stealthing, the non-consensual removal of a condom during sex. Stealthing is immoral. It’s sexual violence. But is it criminal?
Technically, it’s not yet criminal
“Under the New York State penal law, I do not believe that stealthing is a crime,” says Glenn Kurtzrock, a New York criminal defense attorney. “If the victim has consented to sexual intercourse, the current laws do not prohibit the action of removing a condom.”
Kurtzrock explains that if someone were to be charged with a sexual assault solely because he removed a condom without informing his sexual partner, the charge would likely be dismissed as unsupported by the law. As such, most district attorneys simply would not be willing to prosecute. Victims remain unheard; stealthers remain unpunished.
Nothing will change until state legislatures amend the definition of “consent” notes Kurtzrock, who says that the language must specify that when an individual consents to sexual intercourse with someone wearing a condom, he or she is not automatically consenting to sexual intercourse with someone who is not wearing a condom.
Ways that stealthing could be ruled a crime
Not everyone agrees. For instance, criminal defense lawyer Brian Wagner, founder of Wagner Law Associates, P.C. in New York, feels that stealthing can be prosecuted under existing New York laws. “Stealthing is certainly immoral and a potential crime under other various existing crimes,” he says. “A victim of stealthing should treat it like any other crime and report it to the authorities and cooperate with the investigation.”
Moreover, efforts are underway to make stealthing explicitly a crime. “California and Wisconsin lawmakers are now pushing to make stealthing a clear-cut crime,” says criminal defense attorney Lisa Houlé of Houlé Law in Los Angeles, California.
In the meantime, however, victims and prosecutors must rely on current laws. A successful prosecution could lead to serious consequences for the stealther, including extensive jail time and registration as a sex offender. “Aside from the outright lack of moral code such an act exhibits, stealthers may soon find themselves facing a myriad of criminal charges, including sexual battery and rape,” says David P. Shapiro, a criminal defense attorney in San Diego, California.
“If a sexual partner consents to sex with the assurance that a condom will be used and then the condom is removed without their knowledge or consent during sex, the sex becomes non-consensual. Non-consensual sex is rape,” says Houlé.
Another way of looking at the criminality of stealthing is to consider it a form of fraud; namely, fraud in the inducement. If a man convinces a woman to have sex with the promise that he will wear a condom, when all along he plans to remove it without her knowing, then he has not obtained legal consent. “The woman consented based on a false promise that he will use a condom,” says Houlé. “He induced her consent with the promise to wear a condom – once he takes the condom off, consent is gone.”
He said, she said
Even if new stealthing laws are enacted, prosecuting perpetrators will be challenging, as is generally the case with sex crimes. “In terms of proof, it is difficult to prove a sexual partner’s intent to intentionally having removed a condom,” says Wagner. “Unlike many other crimes, sexual assaults usually occur in the privacy of the victim and criminal only, and therefore often lives and dies on whether or not a jury believes a victim beyond a reasonable doubt.”
Shapiro explains that a successful prosecution requires proof that sex actually occurred and that consent for the act was dependent on the practicing of safe sex. “Further,” he says, “it will need to be shown that consent for the initial touching was conditioned upon the use of a condom.”
Condoms serve an important purpose in consensual sex. According to WebMD, “[C]ondoms can protect against sexually transmitted infections (STIs), and they can be used to prevent pregnancy.” When a condom is stealthily removed, the protections it provides are also removed.
An ensuing STI or pregnancy—however unwelcome and unfortunate—could certainly support a victim’s claim, both in criminal and civil court. Take New York, for example: “If an individual with explicit knowledge that he had some type of STI were to stealth someone, he could be charged with a crime,” says Todd A. Spodek, managing partner of Spodek Law Group in New York City.
“Under New York Public Health Law, Section 2307, a person who, knowing himself or herself to be infected with an infectious venereal disease, has sexual intercourse with another, is guilty of a misdemeanor,” says Spodek. “In addition, it is possible that such an act could rise to the level of reckless endangerment, a more serious criminal charge.”
Finding justice in civil court
Considering the legal challenges, it’s unsurprising that victims and prosecutors are hesitant to pursue criminal action against stealthers. But, in terms of legal recourse, there could be a viable civil action.
“Even if the stealther did not give the victim an STI, the victim could potentially file a civil suit for damages (monetary compensation),” Western Michigan University Cooley Law School criminal law professor Jeffrey Swartz told Elite Daily.
“As a civil matter, the victim might be able to file the purposeful tort of battery, a case that would call for not only compensatory damages but also leave the defendant responsible for punitive damages,” Swartz said, adding that the basis of the claim revolves around the conditions of consent.
He explains that the victim gave consent for the contact with conditions that the offender violated. “By violating the conditions,” said Swartz, “the consent is no longer valid and thus the conduct is without consent.”
Changing the culture
Finding justice for the victims of sexual violence—from harassment to stealthing to rape—is more than a legal matter. These victims are less likely to be believed and more likely to be forced to defend their character than those who’ve suffered other crimes. While the law undergoes change, so must the culture that appears to favor the accused. An uphill battle at best.