law & order

Treat Stealthing Like the Crime That It Is Already

Photo: John Slater/Getty Images

Diana didn’t know what stealthing was when it happened to her. Before having sex with her boyfriend, she’d watched him put a condom on. After they finished, she found the open, unused condom stashed within the bedsheets. He didn’t deny removing it when Diana asked what happened. It was no big deal, he insisted. Diana says she was inexperienced and deferential back then — she was 20 years old when the incident took place — so she believed him.

For a long time, Diana lacked the words to describe the transgression. Fast forward to a conversation with her sister, years after she and that now-ex-boyfriend lost touch, during which her sister referred to him as “that guy who raped you,” and it clicked. What she’d experienced was not a hookup mishap. She’d been deliberately violated — her ex had committed an act known as stealthing.

Though stealthing is widely considered a form of sexual assault, the law’s failure to clearly name and cover stealthing allows it to remain not only ambiguous but unlikely to be punishable. “It’s not something people seem to think of as a crime,” Diana says, “or even as being wrong.”

In 2017, the civil-rights lawyer Alexandra Brodsky, then a student at Yale Law School, published what is regarded as a tide-turning paper in The Columbia Journal of Gender and Law. Brodsky, calling stealthing “rape-adjacent,” defined the act as “nonconsensual condom removal during sexual intercourse,” noting that stealthing ​​”can be understood to transform consensual sex into nonconsensual sex … ” because permission has not been granted to forego previously agreed upon protection. (When stealthing is committed, the perpetrator agrees to protected sex then surreptitiously ditches the condom.)

Earlier this month, Brodsky’s paper was cited by California state assembly member Cristina Garcia in proposed legislation for Bill 453, which would add stealthing to California’s civil code if signed by Governor Gavin Newsom. “It’s disgusting that there are online communities that defend and encourage stealthing and give advice on how to get away with removing the condom without the consent of their partner,” reads a press release from Garcia’s office, “but there is nothing in law that makes it clear that this is a crime.” (In her paper, Brodsky quoted blogger Mark Bentson, who wrote of stealthing on his former site IBlastInside: “If you want to do it, you need to know how,” and shared tips for how to covertly commit it.)

California would become the first state to outlaw stealthing. Governor Newsom has until October 10 to sign the bill.

“Some men may not realize the gravity of what they’re doing, and to them this bill could be a deterrent,” Diana says. “But some men know exactly what they’re doing. So now my question becomes: How prosecutable is this?” New York University law professor Melissa Murray says that because Bill 453 is a civil statute, and not a criminal solution, the standard of proof is lower, making it likelier for survivors to establish what happened to them and receive recompense for related suffering — for example, treatment for sexually transmitted infections, unwanted pregnancy, or emotional distress. In a 2019 paper published by the Current Issues in Criminal Justice journal, researchers Brianna Chesser and April Zahra wrote, “Complainants may also experience severe psychological trauma, alongside feelings of guilt and shame. These negative feelings are reinforced by the ambiguity regarding the legality of what has occurred.”

Samuel Dordulian, a Los Angeles attorney who specializes in representing sexual-assault complainants, says that many, like Diana, don’t know there’s a name for this violation. “A lot of victims themselves are not aware that they are victims,” he says. “Many people I talk to believe that once they gave consent, they did not have the right to limit or withdraw that consent. They don’t realize they have rights they can enforce.”

If there’s any question that a civil statute’s lower standard of proof could encourage false claims, Dordulian rejects it. “The psychological harm of coming forward is very difficult. This is not something people do to try and make a few bucks,” he says. “Statistically we know that sexual assaults are under-reported. I do not support that there’s going to be a mass rush to the courthouse with fraudulent claims. The data just doesn’t support that.”

And recourse, for survivors, is not easily found. Rachel says that when it happened to her, the man she was sleeping with, who was behind her, briefly paused to make it seem like he was putting a condom on. When she tried to talk to him about it, he threatened to tarnish her reputation using his industry connections. “That more than anything is what made it a traumatizing experience,” says Rachel, “the powerlessness … I couldn’t even warn other women.”

Murray notes that in criminal cases, the state ultimately decides whether to bring the case against the alleged perpetrator. With this particular statute, survivors decide for themselves. “There’s a lot of agency there,” she says. “That’s actually quite novel … shifting this from a criminal context to a civil context may open a whole new array of opportunities to seek legislative solutions.”

Without something as specific as this proposed bill, Dordulian says, legal action proves difficult. “There’s really nothing in the law that fits this kind of conduct.”The evidence is in the court records. As of now, very few stealthing cases have resulted in actual convictions. In 2017, for example, Swiss courts determined that a man had indeed committed stealthing but downgraded his conviction from rape to defilement after debating whether stealthing counts as rape. Bill 453, Dordulian says, would make it easier for lawyers to explain to judges that stealthing is a form of sexual battery.

“One of the difficulties is trying to fit this kind of encounter into the existing legal framework,” Murray says. “There are lots of ways in which stealthing aligns with the accepted notion of rape, and ways in which it does not. This law may provide a separate category so that you don’t have to worry about trying to fit square pegs into round holes.”

As important, Bill 453 sets a precedent, Dordulian says. “If men see that [stealthing] has consequences, whereas before it never really did, it can be a means of prevention.”

Treat Stealthing Like the Crime That It Is Already