Should ‘stealthing’ be prosecuted under current rape laws?
US Courtroom Sketch
Exploring the idea of conditional consent, Niamh O’Neill questions whether sexual ‘stealthing’ should be prosecutable.
Julian Assange, in the last two decades, has made numerous headlines around the world, mainly focused on his elusion from authorities attempting to prosecute him for espionage, as well as the challenges he has posed to global extradition laws. However, much less focused on in the media are the charges of ‘stealthing’ he faced by the Swedish authorities. A case which has in fact had a significant impact on changing the approach of the UK legal system to include ‘stealthing’ (non-consensual removal of a condom during sexual intercourse) as liable to classification as rape.
Assange went to Sweden on business in August 2010, and had sexual intercourse with a woman. She had only been prepared to have sex with Mr Assange on the precondition that a condom would be used. He at first tried to have unprotected sex with her, and later ripped the condom she gave him. This violated the agreement, and thus violated the terms of the consent given, leading to a rape charge. Whilst this case has since been lost in the turmoil of extradition laws and espionage charges, it remains an important high profile case to bring ‘stealthing’ into consideration.
Another case, the first of its kind in Switzerland, involved a man who was convicted of ‘stealthing’ in Lausanne in 2017. The Swiss court upheld a twelve month suspended sentence for the man convicted of purposefully removing the condom during sex without the consent of his partner. The couple had allegedly met on Tinder and after the incident, the woman, afraid of becoming pregnant or contracting an STI, filed charges against the man. A landmark case, the Swiss court initially convicted the man of rape, but later in an appeals court, the charge changed from rape to defilement. The man remained guilty. Although there are some high profile cases like these that exist, ‘stealthing’ remains a largely under-explored topic, and still legally ambiguous. This means that when it does occur, it’s hard to prosecute under current laws. This can leave victims feeling confused about the significance and legal standing their experience has, on top of obvious feelings of violation.
Why does ‘stealthing’ happen, considering the risks posed to women in terms of pregnancy and STIs? Taken from a sports blog, in which users in the forum were discussing the morality and acceptability of ‘stealthing’, one user writes, “I know the sex is better without a condom, but is it so much better you’d risk pregnancy?”. To which another user simply replies, “Yes.”
However, the motivations extend beyond simply increasing personal pleasure. ‘Stealthing’ lies at the nexus of the ideology of male supremacy and hetero-patriarchal sexual norms, considering the blatant disenfranchisement of a victim’s bodily autonomy and consent. There exists a growing section of the internet dedicated to advice, encouragement and praise given to perpetrators that plan on, or have successfully managed to, remove the condom in the midst of intercourse, without the knowledge or consent of their sexual partner.
The most infamous blog, now deleted, was called “What you need to know about stealthing”, led by a ‘stealther’ named Brendan. An explicit narrative of male dominance and misogyny ran throughout the posts and comments, “Who wants sex, should also want the sperm of the man. That is an instinct, a right; not to deny” and “gives women what they deserve”. These forum contributors appeared to be fully aware of the risks this action posed to their victims, but continued to commit the act, acting upon the thrill gained from degradation. Of course, homosexual ‘stealthing’ between two men exists within the same sphere of dominance, but holds a different character to that of a man and a woman, and occurs less frequently.
In 2017, Alexandra Brodsky submitted a seminal piece to the Columbia Journal of Gender and Law which focused on four ways in which non-consensual condom removal could be prosecuted in the US under current sexual assault and rape laws. Her arguments centre around the fact that despite consent being given prior to the intercourse, if the agreement involving the preconditions for sex (i.e. condom wearing) are violated, then the consent previously given becomes vitiated as well. Because unprotected sex carries a much higher risk factor than protected sex, it is considered a separate act in need of a new consent, given by both partners.
Brodsky is careful in her arguments not to identify non-consensual condom removal as equivalent to other forms of rape - for example, intercourse which involves forceful and violent penetration - in order to not diminish the experience of such survivors. However, to empower her argument to increase the visibility of ‘stealthing’ crimes, and to recognise the separate experience of victims of it, she defines it as ‘rape-adjacent’. Brodsky uses this term because she sees the fundamental aspect of lack of consent as the reason that ‘stealthing’ constitutes a rape crime.
Non-consensual condom-removal has previously circulated within the framework of the ‘latest sex trend’, where misogynists get together, incel-style, on online chat forums and discuss the latest methods to violate a woman’s body and autonomy freely and with little consequence. Now, it is increasingly recognised as being under the jurisdiction of the law, aided by Brodsky’s influential work and subsequent articles and academic papers that have drawn upon her ideas. Although not comparable to other forms of rape, it is important to recognise stealthing as a crime in itself in order to acknowledge the emotional, physical and often financial harm (for example the costs of the morning after pill, pregnancy tests and abortions), and aid survivors in being able to articulate their experience and bring perpetrators to justice.
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