I recently learned of a practice called “stealthing,” in which men stealthily remove their condoms while they are having intercourse, a removal that they carry out without their partners’ knowledge or consent. The practice is described and analyzed at length in a fascinating law review article by Alexandra Brodsky, called “Rape-Adjacent”: Imagining Legal Responses to Nonconsensual Condom Removal. The author suggests in her article that stealthing ought perhaps to be considered a species of sexual assault under existing law, but she raises questions about that approach and also anticipates that it will not happen (given no recorded prosecutions for it found in her research). She accordingly proposes alternate ways of addressing the practice through new criminal legislation, contract litigation, or civil rights or tort suits. In this column, I will consider whether stealthing is best characterized as sexual assault (despite the apparent reluctance of prosecutors to treat it this way) or whether it is a different kind of harm best dealt with through a distinct process.
Stealthing as Akin to Sexual Assault
Though I was unfamiliar with the term and the practice of stealthing, I was aware of the fact that men sometimes pretend to be using a condom and/or tell their partners that they are using a condom when they in fact are not. Stealthing is a variation on that theme, where the sex begins with the man in question using a condom, but he secretly removes it at some point during the sexual interaction. In a column I wrote about rape by deception, I proposed that in most cases, deceiving a sexual partner about something material to the decision to have sex is a wrong that ought not to be characterized as rape or sexual assault. Even though a person might not have consented to sexual intercourse had she known a fact withheld or misrepresented by her partner (such as the failure to wear a condom), she did in fact consent to sex. There is an important difference between two scenarios. In one, the perpetrator says he will not wear a condom, the victim says that in that case she will not consent to sex, and the perpetrator subsequently forces the victim to have sex: this is rape. In the second scenario, the perpetrator says he will wear a condom, the victim consents to sex, but the perpetrator does not in fact wear a condom (or removes it during sex). In this second scenario, the perpetrator has harmed the victim but not in the same way as in the first scenario. A lack of consent is different from a lack of informed consent.
To play the devil’s advocate, I can see the argument for calling stealthing sexual assault. The cases of rape by deception that, in my view, are properly considered rape are those cases in which the victim consents to something but not to what the perpetrator in fact did. Such cases include situations in which a gynecologist has the consent of a patient to insert a speculum into her vagina as part of a pelvic examination but he inserts his penis instead, something that the patient never consented to. Even though one could characterize what the doctor did as simply placing a different thing into the patient’s vagina, having had consent to insert something, the better characterization is that she did not consent to sexual intercourse, and he engaged in sexual intercourse with her in the absence of consent, an act of sexual assault.
One could compare the stealthing scenario with the gynecologist narrative. In this comparison, the victim has agreed to have a condom-covered penis inserted into her vagina (or his anus), but she (or he) has not consented to have a condomless penis inserted into her vagina (or his anus). She (or he) is therefore a victim of sexual assault because she (or he) consented to something completely different from what her (or his) partner actually did. It would, on this argument, be like a case where a woman agreed to have sexual intercourse, but her partner—without her knowledge or consent—inserted a gun into her vagina instead of his penis. Brodsky proposes along similar lines that the person who wanted a condom used consented to have a condom touch her skin but never consented to have a penis touch her skin.
Though I am sympathetic to this characterization, it nonetheless strikes me as wrong. A penis covered by a condom and a penis not covered by a condom are not two different objects, in the way that a speculum and a penis or a penis and a gun are. Arguably, consent to sex with a condom involves an agreement to have two things inserted into one’s vagina (or anus), a penis and a condom, which includes the insertion of the penis.
Stealthing as Distinct from Sexual Assault
What’s wrong with stealthing (or not using a condom at all, while purporting to use one), it seems to me, is not about the sexual interaction itself—in the way that sexual assault really is about the sexual interaction itself. It is instead about the consequences of that sexual interaction, including the possibility of pregnancy and the potential spread of a sexually transmitted infection. If it is sexual assault to “stealth,” then it would seem to be sexual assault for a woman to claim to be wearing a cervical cap while having sex with a man when she is actually not wearing a cervical cap. Yet this action does not seem intuitively to fall within the category of sexual assault or rape. Similarly, if a woman claimed that she was HIV negative but was actually HIV positive, her subsequent sex with a consenting but misled man would also not seem like a rape or sexual assault but like a very different kind of harm, a harm stemming, again, from the consequences of the sexual interaction rather than from the sexual interaction itself.
Brodsky acknowledges the danger of treating stealthing as nonconsensual sex, opening the possibility, as it does, of prosecuting people for sexual assault for failing to disclose their HIV status or their race or ethnicity. She proposes that the “contact with penis”/“contact with condom” distinction differs from the “I’m HIV negative”/“I’m HIV positive” type of prosecution (the latter being rape by deception, a category which Brodsky—like me—finds troubling). Yet she acknowledges that the two approaches can bleed into one another, particularly given that the disease and pregnancy risks of condomless sex (and the corresponding deception involved in engaging in stealthing) are an important part of what makes direct contact with the penis rather than a condom objectionable to partners who want a condom used.
Fortunately, Brodsky proposes a number of alternative ways in which the law could address stealthing, and I absolutely agree with her that the law ought to have something to say about such conduct. Whether or not we consider it to be a kind of sexual assault (and I do not), stealthing subjects people to health and pregnancy risks that the people at issue never agreed in any way to accept. The lack of informed consent does render the conduct at issue a harm, even if the harm is not comparable to a sexual battery. In some cases, the harm could potentially be arguably even worse than a sexual assault, if a fatal disease results from the sexual interaction. I especially like Brodsky’s discussion of contract law and the idea that what is really wrong with the conduct is that it betrays the agreement that the couple either explicitly or tacitly made in engaging in a sexual interaction—that a condom would be used throughout the encounter. Brodsky also does an excellent job of demonstrating that misogyny lies at the core of stealthing practices, a fact that makes civil rights remedies another potentially promising approach to the practice.
Stealthing is thus incontrovertibly a wrongful act that ought to have legal consequences, either criminal or civil or both. Brodsky is right to call out this behavior for the creepy and destructive conduct that it is. By saying that it is not sexual assault, I mean only to suggest that we be precise in characterizing the harmful behavior as the harm that it is rather than a different harm that it is not. Even victims say that it is not equivalent to sexual assault, according to Brodsky. They describe it, instead, as “rape-adjacent.”
The more obvious analogy is a man having sex with a woman who claims to be on birth control, but is not. There are key differences – a condom also protects against STDs, which the pill, IUD, or sponge do not. However, there is already substantial precedent for the ‘no birth control’ situation, which has never been treated as assault. There’s definitely a harm involved in both cases.
The “no birth control” situation leaves open the possibility of parenthood, yes, but not using a condom means the male is physically having sex with the woman in a different way. This includes ejaculation inside the woman which is not present (except perhaps marginally) with a condom. Thus, there is more of a claim of a type of “assault” where bodily touching is done without consent.
You yourself note that no condom leads to more risk. Likewise, even the parenthood possibility is not evenly a burden for each parties. It is worse for a woman, given it is her body. So, no “assault” in one case does not necessarily mean no “assault” in the other case.
In an attempt to be politicly correct the author has forgotten that both sexes have an anus