Two federal lawmakers say secretly removing a condom during sex—commonly called “stealthing”—should be classified as sexual assault. Reps. Ro Khanna (D-San Jose) and Carolyn Maloney (D-New York) co-authored a letter asking the House Judiciary Committee to hold a hearing on the practice, which they call “incredibly dangerous.”
“‘Stealthing can lead to lasting consequences, such as unplanned pregnancies and sexually transmitted infections, and is also a violation of trust between two sexual partners,” the letter read.
The proposal comes two months after California state Assemblywoman Cristina Garcia (D-Bell Gardens) shelved a bill that would have made tampering with sexually protective devices without permission from the other person a form of rape. Last year, the state expanded the penal code definition of sexual assault beyond the use of threat or physical force to include instances where the victim is unconscious or otherwise incapable of giving consent.
Stealthing made headlines earlier this year after Yale Law School grad Alexandra Brodsky published a study in the Columbia Journal of Gender and Law about how people in online message boards encourage the practice. The issue has become part of a broader conversation about expanding the definition of rape to include other nonconsensual acts.
In her report, Brodsky interviewed stealthing victims, who described feeling violated but unsure whether they were assaulted or not. One woman called the experience “rape-adjacent,” for lack of a better term.
Writers who promote nonconsensual condom removal online root the practice in notions of male sexual supremacy, Brodsky found. “Stealthers” describe a range of motivations, including heightened pleasure, thrill from dominance and a belief that the act is “a natural male right,” in both straight and non-heterosexual intercourse.
“Situating nonconsensual condom removal within the broad category of gender violence reveals that the practice is an ethical wrong with practical, psychic, and politically salient repercussions for its victims,” Brodsky wrote in her report. “Feminists have long worked to make these kinds of harms legible in both civil and criminal law—and ensure actual, not merely theoretical, access to court—in order to address victims’ needs and shape sexual norms. Consider, for example, first- and second-wave campaigns to push courts to recognize marital rape, intimate partner abuse, and so-called ‘date rape’ as legally cognizable wrongs, not merely regrettable staples of heterosexuality.”
If stealthing is considered a form of gender violence, Brodsky wrote, then it begs the question of whether it should also be classified as a legal harm.
“None of the victims of nonconsensual condom removal interviewed considered bringing legal action, and no record is available indicating that a United States court has ever been asked to consider condom removal,” Brodsky wrote. “Nonetheless, survivors experience real harms—emotional, financial, and physical—to which the law might provide remedy through compensation or simply an opportunity to be heard and validated.”
The study examined possible criminal, contract, tort and civil rights remedies. Ultimately, the study stated, a new tort for stealthing may be the best way to give victims a viable cause of action.
“While overlooked by the law, nonconsensual condom removal is a harmful and often gender-motivated form of sexual violence,” Brodsky concluded. “Remedy may be found under current law, but a new cause of action may promote the possibility of plaintiffs’ success while reducing negative unintended effects. At its best, such a law would clearly respond to and affirm the harm victims report by making clear that ‘stealthing’ doesn’t just ‘feel violent’—it is.”