Last Christmas Eve opened on a high note for Kimberly. She went to a party and quickly hit it off with an attractive guy—a medical doctor. Later in the evening the two went back to his apartment and had sex. Sleeping with a man just after meeting him was not unprecedented for Kimberly, now 36 (and whose last name will remain anonymous). But doing so required—always, religiously—the use of a condom by her partner.
Given this commitment to personal safety, the evening went sour when, during sex, the doctor removed the condom without telling her. It was only afterwards that she realized what had happened: She had been “stealthed”—the term referring to when a man secretly removes a condom during sex. When Kim reported this incident to a local police precinct, the male cop to whom she spoke was unmoved, suggesting that the guy’s condom had just slipped off.
There are no available statistics on stealthing. But an abundance of anecdotes told to numerous online forums, in addition to the fact that there are websites instructing men on how to stealth without getting caught (these men are often collectively called “the bareback brotherhood”), suggests the practice is common enough to demand a legal response. None exist.
Fortunately, legal scholars are beginning to pursue remedies that will empower stealthing victims to seek punitive (and emotional) recourse for this dangerous betrayal. Leading this effort is Alexandra Brodsky, a fellow at the National Women’s Law Center, whose 2017 article “‘Rape-Adjacent’: Imagining Legal Responses to Nonconsensual Condom Removal,” published in the Columbia Journal of Gender and Law, qualifies as that rare thing: riveting reading in a law journal.
In one sense, as Brodsky frames it, the issue is black and white. Women (and, to a lesser extent, men) are victimized by stealthing. Through a partner’s willful deception, women risk unwanted pregnancy. Through the same deception, both men and women risk contracting sexually transmitted diseases. Because of those risks, victims must deal with lingering emotional and psychological damages. As Brodsky writes, “survivors describe non-consensual condom removal as a threat to their bodily agency.” The pain resonates on many levels.
But when it comes to exactly how, as a legal consideration, consent is being violated, matters go grey fast. In the more straightforward scenario, non-consensual condom removal undermines consent because penetrative contact with the skin of a penis is different from penetrative contact with a condom-covered penis—different enough, at least, to require separate consent. Much as consent to digital penetration is not consent to penile penetration, so consent to sex with a condom is not consent to sex without a condom. According to this “literal approach,” to secretly remove a condom during sex is to ignore this distinction and, ipso facto, violate consent.
There’s a second, more complicated way of conceptualizing consent, which rests more on the public-health concern of condom removal: the risk of a pregnancy and contracting a sexually transmitted disease. Consent to sex with a condom, from this second perspective, is about more than the condom. It is consent to having sex with a minimal chance of pregnancy or exposure to a communicable disease. As a result, what now matters legally is the pre-existing disease and fertility status of the stealther. Disclosure would be required. If this second perspective seems confusing, look at it this way: Would Kim—who always demands a condom—have as strong of a case if she knew with complete certainty that the doctor she had sex with was infertile and free of all sexually transmitted diseases? It seems not.
After laying out these two foundations of consent—again, in the interest of legally prosecuting stealthing per se—Brodsky opts for the literal approach. One reason is pragmatic—”as a purely practical matter,” she writes, “it is more likely to resonate with courts.” He said he’d wear a condom; he put one on; then he took it off without telling me; so my rights were violated. Case closed. The violation of consent here seems intuitively clear to any reasonable juror.
Perhaps more significantly, Brodsky argues that the more precise version of consent—the one that stresses disease and fertility status—could lead to unintended legal outcomes. Consider disclosures about fertility. Brodsky envisions a scenario in which a woman in a long-term abusive relationship feels compelled to submit to sex with a partner who insists she take birth control. But, because the pills make the woman sick, she secretly refuses to take them. “As a result,” Brodsky writes, “she submits to sex that her abuser believes carries little risk of pregnancy because she has, in some sense, deceived him.” If full transparency over fertility was germane to a future stealthing law, this woman’s act would fall into the same category as a man who stealths. By most standards, that would not be a desirable result.
When it comes to sexually transmitted disease (and—big caveat—we should consider HIV in a different category here), there is another set of concerns: As Brodsky writes, “a demand for full transparency might result in overly punitive responses to STI non-disclosure.” She further notes that “both feminists and public-health experts warn against too-harsh laws that punish people who fail to disclose STIs—but who do not ultimately transmit disease—which, they fear, may discourage testing and invite selective enforcement against queer people and people of color.” Disclosure requirements, in other words, would unduly stigmatize.
Although Brodsky does not directly explore this theme, a lot of people with STIs control them with drugs. As a result of dealing with the disease for decades, they know when a partner is more at risk to exposure. It is not obvious that this person—who, say, is just getting to know a possible partner—should be legally compelled to reveal the disease before sleeping with that partner (wearing, of course, a condom).
For these reasons, Brodsky believes that the foundation for consent should center on the fundamental distinction between sex with and without a condom.
Stealthing is a horrible act that should be criminalized. This simple difference seems like an excellent point of departure for addressing what too many men see as merely a “rude” or “controversial” act. Current laws enable victims to go after stealthing through a variety of indirect ways. But, in the end, Brodsky, argues that what’s needed is a direct attack through a new tort that explicitly addresses non-consensual removal. Because, as she puts it, “‘stealthing’ doesn’t just ‘feel violent’—it is.”
