Callers to rape crisis centers have reported an act that has left them shaken, wondering if it constitutes rape: After agreeing to have sex with a condom, their male partner intentionally removed it sometime during intercourse.
It’s called “stealthing,” and its impact as sexual assault is the focus of a research paper exploring if and how one can prosecute the act.
“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,” Alexandra Brodsky, a graduate of Yale Law School, wrote in her research paper “‘Rape-Adjacent’: Imagining Legal Responses to Nonconsensual Condom Removal.”
It was published Wednesday in the Columbia Journal of Gender and Law.
In the paper, Ms. Brodsky cites interviews with male and female victims who realized their partner removed the condom at the moment of re-penetration, others who didn’t realize it until after ejaculation and one who was told the following morning.
Ms. Brodsky’s paper seeks to find legal avenues to hold men accountable for this behavior.
Challenges of reporting and prosecuting rape are logistical and psychological. A victim may not come forward for fear of character defamation, being blamed for the crime against him or her or having to relive the crime through testimony.
In researching her paper, Ms. Brodsky said she was unable to find a “single domestic legal case concerned with the removal of a condom during sex.” She wrote she found online forums of men discussing and praising the practice of “stealthing.”
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,” she wrote.
One commenter on the online forum ExperienceProject.com wrote that he knows the practice is wrong and doesn’t condone it for others, but then offers detailed instructions on how to commit a successful “stealth.”
Another commentator said he didn’t believe a woman actually wants to have sex with a condom.
“Oh I completely agree with this [‘stealthing’],” the commentator wrote. “To me you can’t have one and not the other.”
Ms. Brodsky wrote that others went further by saying that stealthers’ sexual partners “deserve to be impregnated.”
The women Ms. Brodsky interviewed said they initially worried about unwanted pregnancies and sexually transmitted infections, but many also expressed feelings of being violated.
One woman said “the harm mostly had to do with trust. He saw the risk as zero for himself and took no interest in what it might be for me and from a friend and sexual partner.”
Ms. Brodsky proposes two primary ways to argue that nonconsensual removal of a condom negates the original consent and then prosecute the act as sexual assault.
The first is to argue that while the victim consented to being touched by a condom, she or he did not consent to being touched by the skin of the penis.
“The law is clear that one may consent to one form of sexual contact without providing blanket future consent to all sexual content,” she wrote.
The second is to argue that “stealthing” is consent violation because of the risks posed by having sex without a condom.
“Because of the increased risk, the removal of the condom transforms the sexual act into a different act, such that consent to one is not carried over to consent to the other,” Ms. Brodsky wrote.
However, a new civil law should be defined and adopted to protect victims of “stealthing,” Ms. Brodsky concluded.