By: Madeline Olds, Web Editor
Last week, California passed a law outlawing stealthing.[1] Though the passage has been highly publicized and in some of the largest news sites, many Americans are asking each other the same question: what even is stealthing?
“Stealthing” is a colloquial term used to describe when an individual, without the consent of their partner, removes their condom during sex.[2] The term’s wider discussion is credited to Alexandra Brodsky’s article ‘Rape-Adjacent’: Imagining Legal Response to Nonconsensual Condom Removal in the Columbia Journal of Gender and Law Volume 32.[3] In her article, Brodsky, four years prior to the passage of the California law, recognized that stealthing was an issue experienced by many individuals, yet in the United States, there was little to no legal remedy for the victims of this crime.[4] Besides the risk of pregnancy and transmission of STDs, many victims have experienced a multitude of psychological harm, including PTSD and trauma.[5]
Stealthing has been a large issue. In a study done by the Melbourne Sexual Health Clinic. 32% of women and 19% of men who have sex with men reported experiencing stealthing.[6] In the United States, there are no statistics illustrating the percentage of stealthing that occurs within individual states, though there are many victims that have shared their own stories.[7]
There are little to no legal solutions in the United States for individuals outside of California that have been victims of stealthing. The largest reason for this is the difficulty of proving intent versus accident.[8] Because stealthing occurs during what was consensual sex, it is difficult for prosecutors to prove that the action was intentional and not a mere accident.[9]
California’s new law for stealthing, signed by Gov. Gavin Newsom, amends the state’s civil code, adding stealthing to the state’s civil definition of sexual battery.[10] This allows victims to sue the perpetrator for damages.[11] Brodsky herself stated that the benefit of civil litigation is it “keeps decision-making in the hands of survivors, which can be particularly important in the wake of sexual violence, which is itself a denial of the victim’s right to make decision about their lives.”[12] This also allows for victims and their attorneys to have a lower level of proof than in criminal law, with civil law standard of proof being a preponderance of the evidence instead of the criminal law standard of beyond a reasonable doubt. The California law being a civil law also makes it easier to overcome the barrier of intent that was preventing so many victims from receiving any justice.[13]
Many hope that with the passing of anti-stealthing legislation in California, that the rest of the United States will follow suit, including California Assembly member Cristina Garcia, who had introduced the bill in 2017.[14] Currently, lawmakers in New York and Wisconsin have proposed anti-stealthing legislation and there are many that are advocating for strict law and harsh offenses for the perpetrators.[15]
The impact of California’s stealthing law will have on the rest of the country is yet to be seen. However, the law is a beginning for victims of stealthing to receive justice and compensation from the harm they had endured. Hopefully, this new law will inspire other state legislatures to support the passage of such laws to support the victims within their own state.
[1] https://www.npr.org/2021/10/07/1040160313/california-stealthing-nonconsensual-condom-removal
[2] Id.
[3] Brodsky, Alexandra, ‘Rape-Adjacent’: Imagining Legal Responses to Nonconsensual Condom Removal (2017). Columbia Journal of Gender and Law, Vol. 32, No. 2, 2017, Available at SSRN: https://ssrn.com/abstract=2954726
[4] Id.
[5] Id.
[6] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6306234/
[7] https://psmag.com/news/for-women-who-have-been-victims-of-stealthing-there-can-be-dangerous-health-consequences-and-little-option-for-legal-recourse
[8] www.usatoday.com/story/news/nation/2021/10/08/california-law-illegal-remove-condom-without-consent/6054533001/
[9] Id.
[10] https://www.npr.org/2021/10/07/1040160313/california-stealthing-nonconsensual-condom-removal
[11] Id.
[12] www.usatoday.com/story/news/nation/2021/10/08/california-law-illegal-remove-condom-without-consent/6054533001/
[13] Id.
[14] Id.
[15] Id.
