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Arabella, a young woman in her late 20s, was left confused and scared after an encounter with a man called Zain. Whilst the beginning of their hook up began well, midway through Arabella’s partner removed his condom without her knowledge and consent. She felt violated after learning what he did, not knowing that non-consensual condom removal (also known as ‘stealthing’) is rape and prosecutable under UK law.
Whilst Arabella and her story is fiction, from the 2020 BBC show “I May Destroy You”, stealthing is all too real and a growing problem in the 21st century. But what is stealthing? While it seems to be very self-explanatory as just the removal of a condom without a person’s consent, there are nuances within the law that broaden the definition of stealthing. It’s commonly accepted that damaging the condom before or during intercourse is also considered stealthing, though it’s debated whether or not ‘stealthing’ is considered rape or rape-adjacent (next to or connected to rape, but not rape itself).
In the UK Law, section 74 of the Sexual Offences Act 2003 states that consent must be “[agreed] by choice” and that the person must have the “freedom and capacity to make that choice”. As such, the removal or damage of the condom is breaking the consent given to protected sex, by the offender. The Sexual Offences Act of 2003 states in section 1 (1)(b) that “A person (A) commits [rape] if…[person] B does not consent to the penetration” and as such, removal or damaging the condom before or during intercourse means the terms of consent for person B (that is, protected sex) is changed by person A and so the penetration is not consensual, as seen in the case of Lee Hogben in which Hogben purposefully removed his condom, despite the objections from his partner, during intercourse and received 12 years for rape. Therefore, ‘stealthing’ is rape in the UK
An interesting case, developing laws within the UK regarding ‘stealthing’, is Assange v. Swedish Prosecution Authority. Here, Mr. Assange was accused of breaking the previously disclosed conditions for sex with his partner, this being the use of a condom. The “conditional consent” of this case being that Mr. Assange would use a condom during intercourse, which he did not. Conditional consent is consent that is given on specifics situations, and as such only remain valid upon these conditions being met and maintained. If the condition of consensual sex is with a condom, removal of said condom would invalidate the consent and of course, mean it is (under UK Law) now rape. In Assange’s case, the conditions to sexual intercourse were “vitiated”, the legal validity of Mr. Assange’s actions was destroyed when he violated the previously disclosed terms to sexual intercourse by not wearing a condom. The case helped change the UK law to accept the use of conditional consent and made ‘stealthing’ illegal in the UK, regarding stealthing as rape.
Cases regarding stealthing are few and far between. Stealthing has only been explored as a category of sexual violence recently, one of the first law studies of this being conducted only in 2017 in America with its conclusion that stealthing is ‘rape-adjacent’. As such, judicial precedents and laws regarding stealthing are rare, relying on pre-established laws on rape and consent that often don’t quite fit its description and form of abuse, as seen in Germany upon the conviction of police officer due to stealthing. Due to a lack of judicial precedents, he was tried for rape but only convicted for sexual assault. Thus, it can be found that laws that can be used to try people for stealthing are insufficient at providing proper justice for victims at best and provide no justice at worst.
In Australia, the legal status of stealthing is murky, being described as “sexual assault” by the President of the New South Australian Law Society after a case in May 2017 that saw the conditional consent invalidated via stealthing during intercourse. Action has been made to outlaw stealthing in Australia though; in April 2021 Australian opposition party, Canberra Liberals, proposed a bill that would amend current laws regarding consent. If a person is found guilty of purposely misinforming their partner about wearing a condom when they have not, the perpetrator would receive a maximum sentence of 7 years (10 if the victim is under the age of 16). Since October, this law has been passed in Australia’s Capital Territory meaning it’s the first county outlawing stealthing in Australia with specific legislation referring to non-consensual condom removal. Furthermore, a recent amendment to the Crimes Act 1900 means that in section 67, (1)(h), consent is negated if “[It’s] intentionally misrepresented by the other person use of a condom”. The vagueness of the law could allow not just the removal, but the purposeful and malicious damage of a condom during or before intercourse as being seen as negating consent, due to the person intentionally misrepresenting that the condom is both on and not damaged. Thus, this would provide more protection to victims of stealthing by outright banning the malicious damage or removal of condoms, making prosecution easier. This comes at an especially crucial time in Australia due to the amount of sexual assault involving stealthing. For example, a study conducted in a Melbourne sexual health clinic reveals that 32% of women, and 19% of gay men, that responded to their study had reported to being a victim of stealthing . As such, stealthing seems to represent a particularly nasty and increasingly prominent form of sexual assault in Australia that recent legislation is trying to reduce.
In Germany, a man was found guilty of ‘stealthing’ his partner. The victim had explicitly set the terms of sexual intercourse, asking to use a condom. Whilst the man was tried for rape, he was only guilty for sexual assault. The court found the act of stealthing as non-consensual, whilst the intercourse itself was consensual.
In the US, there’s no law that cover stealthing, nor define it as rape, rape-adjacent or sexual assault though a 2017 Harvard study has described stealthing as ‘rape-adjacent’. Currently legislation is being proposed in California to make stealthing illegal (regarding stealthing as ‘sexual battery’), marking the first of its kind in the US. Whilst perpetrators wouldn’t go to jail, it would enable victims to sue the perpetrator, a small but noticeable step to justice for victims of stealthing. Studies conducted in the US have also revealed interesting evidence regarding the prevalence of stealthing. In a 2014 study, 9% of young men were noted to engage in stealthing, purposely damaging or removing their condom. Furthermore, a similar study conducted in 2019 on men with known sexual aggression, increased amount of STIs and unplanned pregnancies where asked whether they used condoms during sex, the frequency of their condom use and the frequency of their stealthing behaviour. It revealed that 10% of males in the study engaged in stealthing, showing a rise and suggesting a need for stealthing legislation to protect people from this rising crime.
Moving away from Western jurisdictions, there is a small exploration of the legality of ‘stealthing’ in Africa, Asia and South America when compared to Western Europe, North America and Oceania. That’s not to say that no country from these continents have laws on stealthing. In Singapore, The Criminal Law Reform Act of 2019 criminalised “fraudulently [obtaining]…consent by means of deception or false representation” and invalidates consent given under a misconception of fact, in section 376H (1)(c). Therefore, stealthing would be illegal and prosecutable under the law due to both the deception of the criminal to wearing a condom and invalidating the consent given by the victim as they didn’t know that the criminal wasn’t wearing a condom. In South Africa, the Soul City Institute has made a clear stance on stealthing, that it is rape, showing a push by people to clarify stealthing as a form of abuse. However, there has been no cases to set the precedent on how to handle stealthing cases yet, due to the difficulty in gathering evidence to form a case against the perpetrator.
To conclude, Stealthing appears to be an increasing form of sexual assault within the world. Combined with the difficulties of providing evidence and forming a case for sexual assault in general, and with the psychological difficulties of victims of stealthing pursuing a case due many not viewing stealthing as a form of assault, the need for proper legislation to protect victims is vital. Without such safeguards, many people (and especially already marginalised groups at risk of stealthing, such as women and gay men) would and are experiencing injustice which must be rectified to create a fair and safe society. Recent legislation has been slowly increasing protection of victims of stealthing and allowing for easier prosecution of assaulters, but they aren’t being passed fast enough, especially in non-western jurisdictions.
The opinions of this article are solely those of the author and are not intended to provide accurate legal advice for anyone to rely on. While the content is intended to be factually correct, the author does not accept any responsibility or liability arising from the use or misuse of this article or any loss/inconvenience/damage stemming from this. Legal advice should be sought from a qualified professional, not this blog. The opinions represented in this blog are personal and belong solely to the author, and do not represent those of the people, institutions, or organisations that the owner may or may not be associated with in a professional or personal capacity, unless explicitly stated, nor do they necessarily represent those of the blog owner. The views expressed by any podcast guest are their own entirely, and do not necessarily reflect those of the blog owner . The blog owner is not responsible and liable for any discrepancy, if any. Any content provided by this blog or its companion podcast is not intended to malign any religion, ethnic group, club, organisation, company, individual, or anyone or anything.
Sources:
- Ashley Mateo, ‘What to Know About ‘Stealthing,’ a Dangerous Form of Sexual Abuse’, Health, (October 14th 2019). <https://www.health.com/condition/sexual-assault/what-is-stealthing> Accessed 19th October 2021
- R v Hogben [2019] <https://www.thelawpages.com/court-cases/Lee-Ivan-James-Hogben-25628-1.law> Accessed 20th October 2021
- Alexandra Brodsky, 'Rape-Adjacent': Imagining Legal Responses to Nonconsensual Condom Removal (2017). Vol. 32, Columbia Journal of Gender and Law <https://ssrn.com/abstract=2954726> (Accessed October 27th 2021)
- Matthew Robinson, ‘stealthing Trial: German man sentenced in landmark case’, CNN (December 20th 2018) <https://edition.cnn.com/2018/12/20/health/stealthing-germany-sexual-assault-scli-intl/index.html> Accessed 20th October 2021
- ‘ ”Is This Rape?” The legal grey-area around prosecuting ‘stealthing’ in Australia’ ABC (2nd May 2017) <https://www.abc.net.au/triplej/programs/hack/stealthing-and-the-law/8489348> accessed 20th October 2021
- Sarah McVeigh, ‘Could this be Australia’s first stealthing court case?’, ABC (19th May 2017) https://www.abc.net.au/triplej/programs/hack/could-this-be-australias-first-stealthing-court-case/8534190 accessed 20th October 2021
- Rafqa Touma, ‘Stealthing is rape: the Australian push to criminalise the removal of a condom during sex without consent’ The Guardian (30th April 2021) https://www.theguardian.com/society/2021/may/01/stealthing-is-the-australian-push-to-criminalise-the-removal-of-a-condom-during-sex-without-consent accessed 20th October 2021
- Jasper Lindell, ‘ACT stealthing laws, outlawing non-consensual condom removal during sex, passes in Australian first’ The Canberra Times (October 7th 2021) https://www.canberratimes.com.au/story/7461012/act-stealthing-law-passes-in-australian-first/ accessed October 20th 2021
- Rosie Latimer, et al, ‘Non-consensual condom removal reported by patients at a sexual health clinic in Melbourne Australia’(2018)
- Robinson (n 4)
- Brodsky (n 3)
- Paulina Firozi, ‘Removing a condom without consent would be illegal if this California bill passes’, Washington Post, (February 10th 2021) https://www.washingtonpost.com/nation/2021/02/10/condom-removal-bill/ accessed October 20th 2021
- Joe Hernandez, ‘California is the 1st state to ban ‘stealthing,’ nonconsensual condom removal’, NPR (October 7th 2021) https://www.npr.org/2021/10/07/1040160313/california-stealthing-nonconsensual-condom-removal?t=1634736477506 accessed October 20th 2021
- Kelly Cue Davis, Cynthia A. Stappenbeck , Jeanette Norris , et al., ‘Young men's condom use resistance tactics: a latent profile analysis’ (2nd April 2013), Volume 51, Journal of sex research, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3723757/, accessed October 27th 2021
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- SoulCityInstitute, (Twitter.com, January 18th 2021), https://twitter.com/soulcity_sa/status/1351016494013042690?lang=en, accessed November 1st 2021
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