Reps. Cristina Garcia and Melissa Sargent.
Removing a condom or other protective device during sex without permission could become an act of sexual assault for the first time in the US under bills being introduced by lawmakers in Wisconsin and California.
Removing a condom without permission — known as “stealthing” — is not a new phenomenon, but garnered national attention last month after Yale Law School graduate Alexandra Brodsky published on how online groups are perpetuating and encouraging the practice.
Wisconsin Democratic Rep. Melissa Sargent was the first in the nation to propose a bill that would modify her state’s interpretation of consent to ensure that sex is not consensual if a “partner removes a sexually protective device, like a condom, during a sexual act without telling the other person who agreed to have sex with that device in tact,” she told to BuzzFeed News.
“We are learning that this is a common thing,” Sargent added. “A lot of people had felt like it was just them.”
The law would also apply to women regarding diaphragms, cervical caps, and other devices intended to prevent pregnancy. It has received 11 co-sponsors in the Assembly and the Senate and will be formally introduced this week, Britt Cudaback, Sargent's legislative assistant, told BuzzFeed News on Monday.
Rep. Cristina Garcia of California also introduced legislation last week that would expand the state’s definition of rape to include tampering with a protective device during sex without the other person’s knowledge.
“This has happened to me,” Garcia said. “People are having a hard time with this idea because they’re like, ‘The sex is consensual.’
In the United States, there is no law against the act of stealthing, so by legally classifying the act as sexual assault, Sargent and Garcia hope to magnify the issue at a national level and shift the conversation from the threads of Reddit to institutions like schools so people can understand it’s a violation.
“It’s no longer consensual if you take a condom off without my permission,” Garcia said.
California law currently defines rape as penetration by a body part of a foreign object without consent. Removing a condom without asking during sex, the lawmakers say, means there is penetration without consent.
“It's about power and you think you have ownership of someone’s body and you don’t,” Garcia said.
If the law passes, anyone accused of stealthing could face rape charges and jail time.
Kate-Lynn Brown said she still feels “so violated and used” after a guy she had been seeing for a few months took his condom off while they were having sex last summer. She has since graduated from college, but told BuzzFeed News she still tries to convince herself what happened to her was not her fault.
“It was devastating,” the 22-year-old said. “Allowing myself to truly think what happened to me was sexual assault is going to help me heal.”
Brown is not alone. Similar stories and reactions are scattered across internet forums, with people describing their own experiences with men removing a condom during sex without their consent or knowledge, but not quite knowing if it was “wrong.”
“Their stories often start the same way, ’I’m not sure if this is rape, but…’” Brodsky said.
Discussion on Reddit mirror the ongoing debate among legal experts, victims' rights advocates, and politicians on how exactly to define and punish the act.
Data, however, is slim. Several organizations that track rape and sexual assault said they do not have specific numbers on women who have reported their partner removing a condom without asking. One in seven women, however, have experienced a partner interfering with their contraception, according to the National Crime Victimization Survey. “
“Sexual assault is defined differently by each state, but stealthing is a violation of consent. If someone has consented to using a condom during sex and someone takes it off, it's a violation of consent that a person has given,” said Jodi Omear, vice president of communications for the Rape, Abuse & Incest National Network (RAINN).
However, Cornell law professor Sherry Colb contends “stealthing” should not be categorized as sexual assault, writing in the blog Justia that “a lack of consent is different from a lack of informed consent.”
“Whether or not we consider it to be a kind of sexual assault (and I do not), stealthing subjects people to health and pregnancy risks that the people at issue never agreed in any way to accept,” she argued. “The lack of informed consent does render the conduct at issue a harm, even if the harm is not comparable to a sexual battery.”
Perpetrators, however, would not be secretly slipping off condoms if they were not intending to mislead their partner, making the act a violation of consent, said Carly N. Mee, an attorney at SurvJustice, which advocates for victims of sexual assault.
“Consent is step-by-step,” Mee told BuzzFeed News. “You don’t consent to any and all sexual activity by consenting just to one.”
Her organization has worked with victims of nonconsensual condom removal who have sought help or legal recourse, which is currently dependent on how certain prosecutors try cases since there is no record of “stealthing” being tried as sexual assault, she said.
“We don't have a high success rate,” Mee said. “This type of violation of consent is not widely understood, so a judge or jury might not be trained to understand it. That's what needs to change.”
While Brodsky says she does not take a position on whether the act should be classified as rape, she notes that her research highlighted similarities between the two, and that one woman she interviewed called it “rape-adjacent.”
“They sensed something bad or wrong had happened to them and felt like a violation, but they didn’t have the vocabulary to describe or process it,” Brodsky told BuzzFeed News.
She praised the lawmakers' efforts in Wisconsin and California, but stressed her desire for a new civil law that specifically addresses nonconsensual condom removal to provide a more defined legal path for victims.
“The law is often skeptical of survivors, especially if they have had a sexual history or past with someone,” she said. “A new tort may be helpful for victims who face skepticism from judges or juries about whether the harm fits into a pre-existing category.”
Garcia and Sargent acknowledge that it will be difficult for stealthing victims to take their cases to court due to the murkiness surrounding consent, but say that just bolsters their case for legislative action.
“It's like date rape,” Garcia said. “But just because it's hard doesn't mean we should not push it forward.”