Consent is a tricky subject when it comes to sex and definitions may vary from state to state. In California, if someone has the mental capacity to be able to consent and is free to be able to stop the activity at any point (including using a previously discussed safe word), someone is typically able to consent to sexual activity. If a person is legally considered mentally incapable of giving consent due to disability, age or intoxication, then anyone who has sex with them can be accused of sexual assault –even if the two parties are married. But one legal gray area has slipped under the radar, and that is the act of non-consentually removing a condom during a sexual encounter, an act many refer to as “stealthing.” A new law in California clarifies that this act is not legal, but at the same time, those accused of stealthing will not face potential jail time.
The Problem With Stealthing
The immediate issues with stealthing are obvious -they put the person who did not consent to sex without a condom at greater risk of STIs and pregnancy. But the emotional consequences are perhaps far more dire as the victim typically does not only feel like they can trust the other party, but they often feel violated. In fact, many victims feel as though they have been date raped because while they consented to have sex with the other individual, they would not have consented to having sex without a condom.
Stealthing is, unfortunately, not a rare occurrence either. In fact, one study has found that 12 percent of women have been victimized by the act, while 10 percent of men have done it. The consequences are not exaggerated either. Men who non-consentually remove condoms during sex are nearly twice as likely as those who do not to have an STI and also nearly twice as likely to have caused an unwanted pregnancy.
What AB-453 Does
California’s AB-453 aims to put consequences in place for those who remove a condom during sex without the consent of their partner. That being said, it does not criminalize the practice. Instead, the law will define stealthing as a form of sexual battery under California’s Civil Code. This means that removing a condom during sex will not be a criminal act, but that victims can file a lawsuit against the perpetrator in civil court.
While many advocates argue that the law should allow for criminal prosecution of stealthing, the fact is that finding sufficient evidence to convict someone for this case would be exceptionally difficult. This is why some victims prefer the idea of confronting the person who removed a condom without their consent in a civil court, where there is a lower standard of evidence. This still allows them to hold the other party responsible without many of the traumatic experiences involved with discussing the situation over and over with the police and prosecutors.
It’s worth noting that pending legislation in New York and Wisconsin do allow for criminal prosecution.
Can Someone be Criminally Charged for Stealthing?
As it stands right now, no one in America has yet been charged in a criminal court for stealthing. While victims may feel like they have been violated and forced to have sex without consent, no one in America has yet been charged for this crime. That being said, tides are changing and in recent years, both German and UK courts have found men guilty of stealthing even without the law changing.
Again, the idea of consent is complex and it is often difficult for prosecutors to secure enough evidence to show that a rape occurred when one party claims the encounter was consensual and another party disagrees. That being said, it is possible a case with ample evidence could move forward under California’s existing sexual assault laws. If, for example, a third party was present to hear a woman say she would only encounter to sex with a man if the man wore a condom and the man willingly admitted that he “stealthed” the woman, this could be sufficient evidence to convict him.
The law is also largely based on precedent, so if one man was successfully convicted for stealthing, more cases of a similar nature would be likely to follow. All of this is a great reminder of how important it is to start working with a skilled defense lawyer as soon as someone accuses you of any kind of sex crime. These charges are often difficult to prove based solely on the accusation of the accuser, but if you accidentally say something that can be used as evidence, it can easily destroy your case.
If you have been accused of a sex crime, please call (760) 643-4050 as soon as possible to schedule a free initial consultation with attorney Peter M. Liss.