Stealthing: New California Legislation Prohibiting Non-Consensual Condom Removal During Sex

About 30 years ago, just a few months after starting working as a prostitute, Maxine Doogan became pregnant.

The young woman had been with a new client at a massage parlor in Anchorage, Alaska, when she realized that the man had surreptitiously removed the condom during sex.

Shocked, she ran to the bathroom. When he returned, the customer was gone.

Doogan, then in his early twenties, went to a nearby health clinic for a round of STI testing and then gave a silent thank you for each negative result.

Six weeks later, however, she had to have an abortion.

It cost him about $ 300, and after the procedure, he was unable to work for a month.

What the customer did was wrong. But as far as she knew it wasn’t illegal.

“There were just no recourse against something like that,” he said.

Now, in a US state there is.

New law

California Governor Gavin Newsom enacted a bipartisan law a few days ago that prohibits non-consensual condom removal, an action known as “stealthing”.

The new legislation adds the practice to the state civil definition of sexual assault, making California the first US state to outlaw it.

The law gives victims a clear legal remedy for the assault that Doogan, who now lives in San Francisco, suffered decades ago.

And advocates say it marks a sea change for other survivors who, unlike Doogan, could now have their day in court.

“We wanted to make sure that it is not only immoral, but illegal,” said California Assemblywoman Cristina Garcia, who introduced the bill.

Garcia has been working on versions of this legislation for years.

In 2017 and again in 2018, he introduced a bill that would have made the stealthing in a criminal offense and allowed prosecutors to request jail sentences for the perpetrators.

These bills either died before they were born or did not get a hearing in state Congress.

Now, this new version, which amends only the civil code, was approved by California legislators without opposition.

The content

Survivors can sue violators for damages, but no criminal charges can be filed.

“I still think this should be in the penal code,” Garcia told the BBC.

“If consent was broken, isn’t that the definition of rape or sexual assault?”, He raised.

Legislative analysts have said that the stealthing it could be considered a misdemeanor of sexual assault, although it is not explicitly mentioned in the penal code.

But Garcia’s new law removes any ambiguity in civil claims that experts say will make it easier for survivors to pursue their cases.

“We can start talking about it in a way where we have a common language,” Garcia said.

The legislator says she was inspired to bring up the issue of the stealthing to the House after reading a 2017 Yale Law School research article from the then student Alexandra Brodsky, who is now widely credited with bringing the term into popular usage.

Brodsky, who now works as a civil rights attorney and is the author of Sexual Justice, which discusses how to respond fairly to sexual assault, detailed a series of stories in its survivor article in the context of consensual romantic or sexual relationships.

Her stories often began in the same way: “I’m not sure this is rape, but …”

The narratives detailed the victims’ fear of sexually transmitted infections and pregnancy, as well as their intense feelings of rape and betrayal.

But the survivors Brodsky spoke to, many of whom reported being previously raped, did not describe the stealthing as equivalent to a sexual assault.

People weren’t making that connection yet, says Brodsky.

“I think a big part of the problem was that a lot of people thought they were the only person it had happened to,” he adds.

But research shows that stealthing it is “depressingly common,” according to the California Senate Judiciary Committee’s analysis in evaluating Garcia’s bill.

Delays

A 2019 article published in the National Library of Medicine found that 12% of women between the ages of 21 and 30 reported experiencing the stealthing.

That same year, researchers at Monash University in Australia found that one in three women and one in five men who have sex with men had been subjected to the practice.

And another 2019 study found that nearly 10% of men reported removing a condom during sex without consent.

In his article, Brodsky quoted a well-known blogger who used his now-defunct site to give other men advice on how to secretly remove condoms without attracting attention.

It is a woman’s duty to spread her legs, commenters wrote, and a man’s right to “spread his seed.”

But while awareness of the stealthing, the legislative response has been delayed.

Even in countries where this practice has been considered sexual assault, including the UK, New Zealand and Germany, it is rarely prosecuted, in part due to difficulties in proving intent.

Here’s the advantage of civil lawsuits: the burden of proof is less than in criminal cases, and the decision to file a lawsuit rests with the survivors, not the prosecutors.

And both Brodsky and Garcia believe there is an inherent meaning in the state officially labeling the stealthing as an illegal act.

“Imagine what it will feel like when they (survivors) see that the state of California thinks that they don’t deserve to be treated this way”, dice Brodsky

The law

The bill was supported by the Erotic Service Providers Legal, Educational and Research Project (Esplerp), an advocacy organization founded and led by Doogan.

The law will allow sex workers to sue clients to remove condoms, he said, and will hopefully pave the way for greater legal protection for sex workers and other groups typically marginalized by the criminal justice system.

“[El stealthing] It can happen to anyone, ”warns Doogan.

There is still the problem of sexual assault cases being addressed.

Those who make these claims are often met with “scrutiny and skepticism,” according to Brodsky.

And when it comes to stealthing, this response is intensified because, “by definition, harm occurs after they have consented to sex.”

But the move has been hailed as an important first step, especially after recent efforts to pass similar legislation in New York and Wisconsin failed.

“I am proud that California is the first in the nation, but I am challenging other state legislators to quickly follow us,” Garcia said.

“One state less, there are 49 left.”

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