California the First State To Outlaw 'Stealthing'

By Andrew Leonatti on September 21, 2021

The practice of "stealthing" — secretly removing a condom during sex — has gained more notoriety in recent years. Some studies have found that 10% of men have admitted to the practice and about the same number of women report being victims of it.

Because stealthing can lead to sexually transmitted diseases, unwanted pregnancies, and psychological trauma, victims' rights advocates have called for the act to be defined as a type of sexual assault.

A New Civil Violation in California

California is poised to become the first state to add stealthing to its definition of sexual battery. After both houses of the state's legislature overwhelmingly approved a bill, it is now awaiting Gov. Gavin Newsom's signature.

The bill makes it illegal to remove a condom without verbal consent. Instead of making this a criminal violation, however, the bill amends California's civil code. That means a victim of stealthing would be able to sue the perpetrator for monetary damages, but the perpetrator would not face jail or any other criminal punishments .

Why Civil vs. Criminal?

A prior attempt to make stealthing a crime fell short in the California legislature. A legislative analysis prepared by California Assembly staff finds that the state's existing definition of sexual battery — "causing harmful or offensive contact with an intimate part of another person, without the other person's consent" — already could potentially cover stealthing in both a criminal and civil manner. That is because while someone can consent to sex with a condom, removing that condom could constitute harmful or offensive contact.

It would be difficult, however, to prove that someone removed a condom intentionally and not by accident.

The bill, then, removes ambiguity from the civil definition of sexual battery. Civil rights attorney Alexandra Brodsky, who authored a study on stealthing, said that using the civil courts could be more empowering to victims, allowing them to remain more in control of the process as compared to the criminal justice system. It is also worth noting that a civil court's "preponderance of the evidence" standard — meaning essentially that there is a more than 50% chance of being true — is lower than a criminal court requiring proof "beyond a reasonable doubt."

The Start of a Movement?

There have been stealthing-related criminal convictions in New Zealand and in Germany, but bills to make stealthing a crime in Wisconsin and in New York failed to gain traction. The proposed New York law also would have criminalized tampering with a condom without consent, such as by poking holes in it.

U.S. Reps. Carolyn Maloney, D-N.Y., and Ro Khanna, D-Calif., are also advocating for legislation at the federal level to classify stealthing as rape. Assemblywoman Cristina Garcia, the California bill's sponsor, said that she hopes the current bill's passage will make it easier to make stealthing a criminal offense in the future.

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