Andrew Kasner
MLAW100
Strengthening the Sexual Assault Laws:
Why “Stealthing” Should Be Illegal
“Stealthing” is the act of secretly transforming consensual protected intercourse into non-consensual unprotected sex. This may be performed by a male or female by removing the condom during sex, poking a hole in the condom or lying about being on birth control such as pills or an IUD. Stealthing can lead to lasting consequences such as unplanned pregnancies and sexually transmitted infections, while also causing a violation of trust and dignity between two sexual partners (Rossman, 2017). Many people who have either had this experience or hear about it from others dismiss it as a rude thing to do but not violent. Like so many kinds of sexual violence, stealthing is perpetrated by people the victim has a close relationship with. Therefore, people push it aside and do not take action against the perpetrator. Stealthing, like sexual assault, forces a person to engage in a sexual act against their will. Consequently, stealthing must be defined as sexual assault as this act forces someone to engage in unprotected sex without their consent.
While the most frequently claimed excuse seems to be a desire to experience the pleasure of “raw,” “bareback,” or condom-less sex, another desire is the pleasure created by the assertion of power combined with risking a violation (Watson, 2018). Other reasons people use to validate stealthing include: they don’t like wearing condoms, they feel they have a right to ejaculate into their partner, regardless of consent, they are selfish about their pleasure, they don’t care about the feelings or safety of their partner, they want to exert power over their partner or they think it’s funny or want to embarrass/shame their partner (Teen Health, 2017). However, none of these so-called reasons are valid, as there is no justification for sexual assault.
There is a significant portion of people that not only engage in stealthing, but encourage and share tips with others to do the same. In my research, I learned about online forums and guides with step-by-step instructions on how to secretly remove the condom during intercourse. These online communities defend stealthing as a male right, a right of every man to “spread his seed.” The forums “train” men about stealthing practices and offer support and advice in their pursuit of nonconsensual condom removal during sex (Hatch, 2017). Online writers who practice or promote nonconsensual condom removal root their actions in misogyny and investment in male sexual supremacy. While one can imagine a range of motivations for stealthers, like those discussed above, online discussions suggest offenders and their defenders justify their actions as a natural male instinct and natural male right. One commenter on an article about stealthing wrote, “It’s a man’s instinct to shoot his load into a woman. He should never be denied that right. As a woman, it’s my duty to spread my legs and let a man shoot his load into [me] whenever he wants.” Another defender, commenting on a blog post detailing one man’s “strategy” for stealthing, explained: “Oh I completely agree with this. To me, you can’t have one and not the other, if she wants the [guy] then she also has to take the guy’s load” A further contributor on the thread asked whether the sexual partners of “stealthers” “deserve to be impregnated.” “Yes, they deserve it,” another replied. “That’s how god created this universe, we are born to do it,” replied another (Brodsky, 2017).
Research shows that stealthing is a fairly common act. According to Alexandra Brodsky, who authored an article about stealthing when she was a student at Yale Law School, interviews with people who have experienced condom removal and online accounts from victims indicate that nonconsensual condom removal is a common practice among young, sexually active people. Both men and women describe having sex with male partners who removed the condom without their knowledge during sex. While survivors’ responses to the experience vary, two common themes emerge from their stories. First, survivors fear unwanted pregnancies and sexually transmitted infections. Second, survivors experienced nonconsensual condom removal as a clear violation of their bodily autonomy and the trust they had mistakenly placed in their sexual partner (Brodsky, 2017).
Currently, no law includes stealthing as a form of sexual assault. Julie Rendelman, a criminal defense attorney notes that stealthing is not a criminal offense. Stealthing isn’t new or unheard of, but it’s not openly spoken about, nor is it explicitly recognized under the law. While there are some circumstances where a victim of stealthing could potentially take legal action against the person who stealthed them, like if the stealther knowingly passed on an STI or STD to the victim, there are certain possible defenses, such as the individual had no knowledge he or she had such a disease (Massony, 2018). Even though it may be difficult to prove, stealthing should be defined in the law of sexual assault so victims of stealthing can take action. Many people find meaning and value in the criminal justice system and want to control their case, to stand up in court and hold the perpetrator accountable, which could include financial restitution, jail time, or probation.
Marital rape used to be legal in many states, but as Alexandra Brodsky noted, subsequently, "the shift away from that not only meant that there was recourse, but it also meant that we as a society reconceptualized [sexual assault] rights to their own bodies in marriages." Law can be a powerful tool for shaping social norms," she said (Brodsky, 2017). Enacting a law defining and outlawing stealthing will be helpful in both preventing the acts and recovering from them.
The current sexual assault laws are insufficient remedies for victims of stealthing. Sexual assault is an act in which a person intentionally sexually contacts another person without his or her consent. This definition includes coercing a person to engage in a sexual act against their will. It is a form of sexual violence which includes rape, groping, child sexual abuse or the torture of the person in a sexual manner. In Maryland, the law is as follows: First Degree – engaging in a sexual act by force, threat, or without consent while displaying a weapon, suffocating or physically injuring the victim, or threatening the victim with death, disfigurement, or serious physical injury, or committed with another’s help or during a burglary. Second Degree– engaging in a sexual act with another by force or without his or her consent, with a mentally or physically incapacitated person when the defendant should know of his or her condition, or the victim is under 14 and the defendant is at least 4 years older than the victim. Third Degree – includes any of the following: engaging in sexual contact in any of the following situations: Without consent while using a weapon, strangling or seriously injuring the victim, threatening the victim with death, serious injury, or kidnapping, or committed with another’s help or the victim is mentally or physically incapacitated and the defendant knows of his or her condition, the victim is under 14 years old and the defendant is at least 4 years older, or engaging in a sexual act or vaginal sex with a 14 or 15 year old victim by a 21 year old or older defendant. Fourth Degree – includes any of the following: Engaging in sexual contact without the other’s consent, engaging in a sexual act or vaginal sex with a 14 or 15 year old when the defendant is at least 4 years older, engaging in a sexual act, sexual contact, or vaginal sex with a child under 18 who at the time of the sexual activity was a student enrolled in a school where the person was in a position of authority (i.e. a principal, coach, teacher, or counselor who’s at least 21 years old, employed by the school, and was in a supervisory position over the student).
The sexual assault laws are missing an important form of sexual assault in which many experience a violation of dignity and autonomy. The absence of stealthing cases indicate that few recognize such condom removal, lying about birth control and non-consensual unprotected sex as a potential legal wrong. Additionally, many victims are unsure whether their experiences are merely people behaving badly or a true moral wrong punishable by the judicial system.
Sexual assault laws must include stealthing to deter this repulsive act. The amended law should include the additional definition of stealthing stated as: “altering consensual protected intercourse into non-consensual unprotected intercourse by removing, interfering with, or lying about a birth control method.” This amended law will give victims the ability to speak out, protect their dignity in court by holding the perpetrators accountable for their assault.
Shelly Hettleman represents the 11th district as a Delegate in the General Assembly. Growing up in the 11th district, I admire her values and issues that she is fighting towards, including public education and women’s rights. Delegate Hettleman ran for Delegate because she believes in public service. Throughout her life, she has practiced what she preaches. Her record of effective public-interest and community service, her devotion to family and family values, and her integrity and independence are proven. In 2016, Delegate Hettleman introduced a legislation in the General Assembly session that made law enforcement agencies keep rape kits and other evidence in sexual assault cases for 20 years. Consequently, I knew she would be the perfect delegate to present my policy brief to and hear her feedback.
I emailed Delegate Hettleman asking if I could meet with her or schedule a phone conference to present my policy brief. A couple days later, her secretary emailed me back and asked me to send her the brief so Delegate Hettleman could read it and provide feedback. After she didn’t respond for another week, I followed up and emailed again.
A couple days after I followed up she responded, “I read with interest your policy brief about stealthing. To be honest, this is a term I'd never heard before, but I found your analysis of the issue and argument that it should be a crime compelling. I am interested in learning more and will track down Alexandra Brodsky's articles discussing the issue and see whether there are other states that have made the practice illegal. As a policymaker, I often get ideas for legislation from constituents or from reading about an issue in the media. No one has ever spoken to me about this, which is understandable given the private nature of the topic, nor have I seen a report in the media. Nonetheless, it certainly seems like an act of intimate partner abuse. As you may know, I have worked in the area of domestic violence, and I will check with some former colleagues and advocates to see whether they have heard from their clients about this type of abuse as a form of control.”
I felt very good after this response because I was the first person to bring this to her attention. I was quite surprised she had never heard of this term before as my research proved that there are many cases of stealthing, including many articles and forums regarding condom removal. As a delegate who has proven to change the law before, I am confident she will truly look into this social injustice and fight for a new law. If the law is added in Maryland, I could proudly say that I was the seed that sprung the law into action.
The lectures, discussions, and debates have genuinely refined my stance on many social issues.
References
Brodsky, A. (2017). 'Rape-Adjacent': Imagining Legal Responses to Nonconsensual Condom
Removal. Columbia Journal of Gender and Law, Vol. 32. Retrieved from https://ssrn.com/abstract=2954726
Hatch, J. (2017, April 24). Inside The Online Community Of Men Who Preach Removing
Condoms Without Consent. Retrieved from https://www.huffingtonpost.com/entry/inside-the-online-community-of-men-who-preach-removing-condoms-without-consent_us_58f75eb2e4b05b9d613eb997
Massony, T. (2018, November 13). Is Stealthing Illegal? Here's How Guys Can Get In Serious
Trouble For It. Retrieved from https://www.elitedaily.com/news/is-stealthing-illegal-how-guys-get-in-trouble/1892968
Rossman, S. (2017, October 04). 'Stealthing' is sexual assault and Congress should address it,
lawmakers say. Retrieved from https://www.usatoday.com/story/news/politics/onpolitics/2017/10/04/lawmakers-stealthing-sexual-assault-and-congress-should-address/731654001/
Teen Health Source. (2017, October 12). What's the deal with Stealthing? Retrieved from
Watson, L. (2018, September 21). Stealthing: What You Need to Know. Retrieved from
https://www.psychologytoday.com/us/blog/married-and-still-doing-it/201809/stealthing-what-you-need-know