Stealthing And Nonconsensual Sex

 

“While overlooked by the law, nonconsensual condom removal is a harmful and often gender-motivated form of sexual violence. Remedy may be found under current law, but a new cause of action may promote the possibility of plaintiffs’ success while reducing negative unintended effects. At its best, such a law would clearly respond to and affirm the harm victims report by making clear that 'stealthing' doesn’t just 'feel violent' – it is.”

(Alexandra Brodsky. “'Rape-Adjacent': Imagining Legal Responses to Nonconsensual Condom Removal.” Columbia Journal of Gender and Law, Vol. 32, No. 2, 2017.)

If you are like me, you have never heard the term “stealthing.” Be informed …

“Nonconsensual condom removal during sexual intercourse exposes victims to physical risks of pregnancy and disease and, interviews make clear, is experienced by many as a grave violation of dignity and autonomy. Such condom removal, popularly known as 'stealthing,' can be understood to transform consensual sex into nonconsensual sex by one of two theories, one of which poses a risk of over-criminalization by demanding complete transparency about reproductive capacity and sexually transmitted infections …

“Ultimately, a new tort for 'stealthing' is necessary both to provide victims with a more viable cause of action and to reflect better the harms wrought by nonconsensual condom removal.”

(Alexandra Brodsky. “'Rape-Adjacent': Imagining Legal Responses to Nonconsensual Condom Removal.” Columbia Journal of Gender and Law, Vol. 32, No. 2, 2017.)

The term “stealthing” has been in use in the gay community to describe the criminal transmission of HIV since at least 2014.

Law student Alexandra Brodsky's law journal article on the topic in 2017 is credited with kick-starting a wider discussion on stealthing. Brodsky, who is now a civil rights attorney and author of the book Sexual Justice, says few people were talking openly about nonconsensual condom removal at the time and that victims face additional scrutiny, because stealthing starts with consensual sex.

In her report, Brodsky wrote, “online writers who practice or promote nonconsensual condom removal root their actions in misogyny and investment in male sexual supremacy. While one can imagine a range of motivations for ‘stealthers’ – increased physical pleasure, a thrill from degradation – online discussions suggest offenders and their defenders justify their actions as a natural male instinct – and natural male right.”

“Stealthing is about dominance and power, and it can happen to anyone. It's one of those things no-one ever talks about, but people are starting to turn their minds to something that has been happening forever."

– Dr Brianna Chesser, psychologist and senior lecturer in criminology and justice at RMIT University

California just became the first state in the U.S. to outlaw "stealthing.” The law, signed by Gov. Gavin Newsom on Thursday, makes it a civil offense under state law for someone to remove a condom without their romantic partner's consent.

"For a majority of the people, it's like, yeah, it makes sense that this is immoral and it should be illegal," State Assembly member Cristina Garcia, who sponsored the legislation, told NPR. "A lot of people told me, 'I can't believe it's not already illegal,' " she added. The California State Legislature had approved the measure without opposition.

(Joe Hernandez. “California is the first state to ban 'stealthing,' nonconsensual condom removal.” National Public Radio. October 07, 2021.)

The authors of one 2018 study predicted that two percent of its respondents would report having experienced stealthing; instead, they were shocked to find that nearly 32 percent of women and 19 percent of men surveyed had experienced a partner removing a condom without their consent.

The study also did not include heterosexual men, who in a way, themselves, can be stealthed. For example, consider a woman who surreptitiously uses a pin to pokes holes in a condom before it’s used.

(R.L. Latimer, L.A. Vodstrcil, et al. Non-consensual condom removal, reported by patients at a sexual health clinic in Melbourne, Australia. PloS one, 13(12), e0209779. 2018.)

Survivors of sexual assault may face a number of “myths and biases” in court, Brodsky said. For example, jurors may refuse to see a crime as “serious,” or simply not believe the victim, in cases where the victim has had a relationship with an alleged rapist, or when their prior sexual activity is called into question.

"The experience of realizing that your partner, your sexual partner, has no concern for your autonomy, your individual dignity, your right to make decisions about who you have sex with, when and how, that's a terrible violation regardless of whether a physical injury occurs, regardless of whether a pregnancy occurs."

– Alexandra Brodsky

“There are survivors who find meaning in the criminal justice system,” Brodsky said. “But I think that for many, the chance to have control over a case, to stand up in court, to receive financial restitution from the person who wronged them can be very meaningful to them.”

“Marital rape used to be legal in a lot of states,” she said. “The shift away from that not only meant that there was recourse (for victims)… but it also meant that we as a society reconceptualized women’s rights to their own bodies in marriages.

“Law can be a powerful tool for shaping social norms,” she said.

(Michael Nedelman. “Some call it ‘stealthing,’ others call it sexual assault.” CNN. April 28, 2017.)

Conclusions

Stealthing is an assault on one’s personhood – a violation and a betrayal of trust. There likely will be negative physical, psychological and relational consequences. The effects of this offense and how severe or long-lasting they will be will require systematic and longitudinal scientific study. While its status as a crime is yet to be established, the practice of stealthing bears heavily on the agency of women to control their own bodies, lives, and futures.

Betrayal trauma refers to a social dimension of psychological trauma, independent of post-traumatic stress reactions Betrayal trauma theory highlights the importance of safe and trustworthy attachment relationships in understanding posttraumatic outcomes.

Purposeful, nonconsensual tampering with or removal of condoms is high-risk sexual behavior. It also violates an individual’s choice and autonomy over his or her own body. Consent is the metric of sexual assault rather than an archaic standard of force.

Stealthing as a distinctive form of gender-based sexual violence, it also establishes it as a practice that deviously subjugates female sexuality and reproduction under the guise of sexual autonomy and sexual consent.

Stealthing can turn otherwise consensual sexual activity into non-consensual sexual
activity. While some individuals that experience stealthing may see their partners remove or damage the condom during intercourse, others may be completely unaware. In addition to violating a sexual partner’s consent, stealthing exposes that individual to increased risk of unintended pregnancy and transmission of sexually transmitted infections (STIs), and may result in lasting physical, emotional, and psychological trauma for those affected. Those who practice stealthing do so as a willful act of deception, and in some cases as an act of reproductive coercion or deliberate HIV transmission.

(Sumayya Ebrahim. “I’m Not Sure This Is Rape, But: An Exposition of the Stealthing Trend.” Sage Journals. Volume: 9 issue: 2. April 4, 2019.)