The act of removing a condom during sex, known as “stealthing”, is being challenged by lawmakers in California and Maine, who consider the act another form of rape. California Assemblymember Cristina Garcia and Wisconsin Representative Melissa Sargent are looking to expand the definition of rape in their states to include nonconsensual removal of a condom during sexual intercourse.
Garcia explained why it is necessary to create laws that would criminalize stealthing when she presented the bill. “Stealthing is rape,” she said. “Penetration without consent is rape.” The legislation, proposed by Sargent, is similar, focusing on the lack of consent that occurs during stealthing.
However, others think that the focus shouldn’t be on consent. Sherry Colb, a law professor at Cornell, explains the difficulty of labeling stealthing as a form of sexual assault.
“What’s wrong with stealthing, (or not using a condom at all, while purporting to use one), it seems to me, is not about the sexual interaction itself—in the way that sexual assault really is about the sexual interaction itself,” she wrote. “It is instead about the consequences of that sexual interaction, including the possibility of pregnancy and the potential spread of a sexually transmitted infection.”
Colby also mentions a study recently conducted on stealthing by Yale’s Alexandra Brodsky. The study, titled “‘Rape-Adjacent’: Imagining Legal Consequences for Nonconsensual Condom Removal,” addresses the difficulties that might arise when stealthing is defined as sexual assault. Colby explains these possible difficulties.
Colby writes, “ . . . if a woman claimed that she was HIV negative but was actually HIV positive, her subsequent sex with a consenting but misled man would also not seem like a rape or sexual assault but like a very different kind of harm, a harm stemming, again, from the consequences of the sexual interaction rather than from the sexual interaction itself.”
She makes sure to acknowledge though, as Brodsky does in her study, that stealthing must be addressed. “By saying that it is not sexual assault,” she writes, “I mean only to suggest that we be precise in characterizing the harmful behavior as the harm that it is rather than a different harm that it is not. Even victims say that it is not equivalent to sexual assault, according to Brodsky. They describe it, instead, as ‘rape-adjacent.’”
The amount of awareness being brought to “stealthing” is already helping its victims, regardless of disagreements over its classification.
Sargent talks about the importance of merely identifying nonconsensual condom removal as something that can be reported. “Why would anyone report something that hasn’t been condemned?” she wrote. “Since introducing this legislation, I’ve had people from both Madison and UW-Madison’s campus, reach out to me to share their stories and experiences with ‘stealthing,’ so the issue isn’t whether or not ‘stealthing’ is happening, it’s whether or not we’re going to do something about it.”
Whether or not “stealthing” will be considered sexual assault, creating a definable term which can be condemned both socially and through definable consequences, will likely increase reported cases and reduce their incidence.
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