Is non-consensual condom removal sexual assault?

Non-consensual condom removal, recently termed as “stealthing”, has been dubbed by some as a form of sexual assault. But Sherry F. Colb, Professor of Law at Cornell Law School, argues that “stealthing” and “sexual assault” are not equivalent. Although stealthing is “a wrongful act that ought to have legal consequences, either criminal or civil or both”, to call it sexual assault is being imprecise with definitions. 

She adds, “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.””

Excerpt from Professor Colb’s article for Verdict

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.

[…]

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.

[…]

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.”

Fin

Read the full article, originally published at Verdict on 10th May 2017. 

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights. She has published articles in a variety of law reviews, including Stanford, Columbia, N.Y.U., and G.W., on such topics as privacy from police searches, incarceration, reproductive rights, and why courts are more offended by wrongdoing that results in concrete rather than abstract harm. Colb has also published a book about sex equality in the Twenty-First Century, entitled When Sex Counts, and a book about veganism entitled Mind If I Order the Cheeseburger?. Before beginning her career in law teaching, Colb clerked for Judge Wilfred Feinberg of the U.S. Court of Appeals for the Second Circuit and Justice Harry A. Blackmun of the U.S. Supreme Court. She received her J.D. magna cum laude from Harvard Law School and her A.B. summa cum laude and valedictorian from Columbia College.

Biography from Verdict

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