On Thursday, a bill introduced by California Assemblywoman Cristina Garcia made its way to the governor’s desk for approval. The bill, AB 453, would classify nonconsensual condom removal as a form of sexual battery, thus ensuring that “removing a condom without permission isn’t just immoral, but it’s illegal,” Assemblywoman Garcia wrote in a tweet. While the bill wouldn’t criminalize removing a condom without a partner’s consent, it would make it subject to litigation and civil penalty. If signed into law by Governor Newsom, AB 453 would be the first piece of state legislation effectively outlawing nonconsensual condom removal in the country.
The nonconsensual removal of a condom without a partner’s consent is widely known as “stealthing.” The term was popularized by an April 2017 paper by then-Columbia law student and author of Sexual Justice Alexandra Brodsky, who interviewed subjects — mostly women — who had been victims of the practice. In an interview with Rolling Stone, Brodsky says that while her subjects couldn’t quite find the language to identify the practice, all recognized that it had been a significant violation of their boundaries and consent. “A lot of people were struggling with, ‘Is this bad? It felt bad to me,’” Brodsky says. “I think legal recognition of the harm is one way to validate survivors’ experiences of [stealthing].”
Prior to Brodsky’s research, “stealthing” was a fairly well-known term within the gay community, particularly with reference to an HIV-positive man actively trying to infect an HIV-negative man without their knowledge or consent. (It’s worth noting there is also a fairly significant volume of stealthing videos on sites like Pornhub, though given that the site’s new guidelines require uploaders to be verified and submit model releases, these videos are likely appealing to viewers with stealthing fantasies rather than depicting an actual nonconsensual sexual act.) Among men who have sex with women, the practice of removing a condom without a partner’s consent had also been somewhat well-documented, with one 2014 study finding that nearly 10 percent of young men had engaged in some form of condom sabotage, such as poking a hole in a condom or removing it without their partner’s knowledge or consent.
Yet Brodsky’s paper brought heightened visibility to the practice. “My legal question was, does this kind of harm fit into any of our existing categories of sexual violence, and if so, would victims have any chance of success in court? What would meaningful legal relief mean to them?,” she says. The paper went viral, prompting more in-depth research on the prevalence of the practice. The authors of one 2019 study predicted that two percent of its respondents would report having experienced stealthing; instead, they were shocked to find that nearly 32 percent of women and 19 percent of men surveyed had experienced a partner removing a condom without their consent. The HBO series I May Destroy You also featured a storyline in which the protagonist Arabella (Michaela Coel) is a victim of stealthing.
Prior to the California bill, other states such as New York have attempted to pass their own legislation specifically targeting stealthing as a form of sexual violence (the bill failed to pass the committee stage). Other countries have been more successful. Earlier this year, a New Zealand court successfully prosecuted a man accused of stealthing during an encounter with a sex worker, sentencing him to three years and nine months in prison; courts in Switzerland, Canada, and Germany have also prosecuted men accused of the act.
Brodsky says she was pleased to see California’s legislation, and does not feel that stealthing should necessarily be criminalized. “When survivors turn to the criminal legal system, everyone but them gets to make decisions how to the case proceeds. Police have to decide whether to investigate, prosecutors have to decide whether to pursue the case. Survivors don’t get a vote and that can be a really disempowering experience compounding the violation itself,” she says. With civil litigation, “the victim gets to choose.” The fact that there is separate legislation targeting nonconsensual condom removal specifically, rather than attempting to prosecute the offense under existing legislation, will also benefit survivors. “Survivors who are sexually active often face skepticism from courts,” Brodsky says. “Explicitly naming the harm, rather than trying to shoehorn it into a preexisting category, will make the harm more legible to courts… and the more public discussion there is around an issue, the more confidently survivors can put a name to their experience and come forward.”