What Exactly Is Stealthing—and Why Isn't It Illegal Yet?
In the past few years, nonconsensual condom removal—also known as "stealthing"—has become a topic of heated conversation. This form of sexual assault happens when a person with a penis removes or damages a condom during sex without a partner's knowledge or consent. Stealthing isn't an innocent mistake. The condom didn't break or fall off. It's an intentional decision to put someone in danger.
Stealthing—an action that opens someone up to unwanted pregnancy and the risk of sexually transmitted infections (STIs)—comes from a place of entitlement and apathy, where someone believes that they can do whatever they please, said Laura McGuire, Ph.D., author of the book "Creating Cultures of Consent"—and if they do harm, they don't care.
This specific type of sexual assault became recognized beyond the more sinister corners of Reddit in 2017, when civil rights lawyer Alexandra Brodsky, who was involved in the student movement to end gender violence on college campuses, published her research on stealthing in the Columbia Journal of Gender and Law. In her paper, Brodsky wrote that survivors explain stealthing as "a violation of trust and a denial of autonomy, not dissimilar to rape."
A new proposal in California
But while rape is criminalized, there's no legal recourse or criminal classification of stealthing in the United States. One California assemblymember, Cristina Garcia, is looking to change that. In February 2021, Garcia introduced an amendment to a section of the state's civil code that aims to include stealthing in its definition of sexual battery, stating that a person who "causes contact between a penis, from which a condom has been removed, and the intimate part of another who did not verbally consent to the condom being removed" has committed a crime.
When someone engages in stealthing, it's a premeditated, thoughtful and purposeful action that's carried out with intent, said Jennifer Long, the CEO of AEquitas, a nonprofit organization that works to combat gender-based violence through the legal system. "If an activity is being planned for the purpose of harming someone else, then that's an area where the criminal law needs to be poised as a method of trying to prevent it," Long said.
'Stealthing is about manipulation and a complete invalidation of consent, it needs to be seen for what it is: sexual violence with long-term implications.'
Garcia initially proposed amending the state's definition of sexual battery in 2017 and again in 2018; both times, the proposals failed over concerns that it would increase the prison population, according to Garcia's office. In 2017, then-Wisconsin state Rep. Melissa Sargent proposed a similar bill to classify stealthing as sexual assault in her state, but that measure failed as well.
What makes now different? Garcia pointed to the the continuing conversation of sexual assault online and in media—noting the show "I May Destroy You" in particular—in a statement to the Washington Post. The award-winning HBO Original, which debuted in June 2020, covers the emotional issues of sexual assault and bodily autonomy through the experiences of Arabella, played by writer and creator Michaela Coel. In episode 4, Arabella becomes a victim of stealthing.
"This type of trauma impacts survivors on multiple levels," McGuire explained. People not only experience physical danger, but psychological trauma as well. And the ripple effects of these experiences can have lifelong negative impacts. "Survivors need to feel seen, supported and protected," they said. "Because stealthing is about manipulation and a complete invalidation of consent, it needs to be seen for what it is: sexual violence with long-term implications."
Difficult challenges lie ahead
But even as stealthing becomes a more recognized form of sexual assault, criminal prosecution of stealthing cases in the U.S. will face challenges. Any time a victim has consented to some part of the sexual activity, it's difficult to draw a line in a legal argument that explains the victim didn't offer blanket consent to the entire sexual experience. That said, it certainly doesn't force anyone to give up their right to remove consent for what follows, Long added.
If the California amendment is finally adopted, the state would be the first and only one with explicit legal protection against this kind of sexual assault, and victims of stealthing would have the right to press charges and receive damages if they chose to pursue action.
As the media and the public become more educated on what stealthing is and how it can impact people's lives, it's possible that victims will be taken more seriously in the near future. But "understand that criminal law is one tool, one area of accountability," Long cautioned. "It's not going to be able to provide all of the healing and all of the response that a survivor will need to any part of sexual violence."