‘STEALTHING’: NATURAL MALE RIGHT — OR RAPE?
COVERT REMOVAL OF CONDOM GETS A LEGAL WORKOUT
If a woman agrees to a night of consensual sex, premised on the explicit condition her partner uses a condom, and he surreptitiously removes his prophylactic, is the act tantamount to rape?
Alexandra Brodsky is certainly open to viewing “non-consensual condom removal” — popularly dubbed “stealthing” — as rape.
In a controversial new paper, Brodsky, a research fellow at Washington, D.C.based National Women's Law Center, argues stealthing is a form of “widespread,” gender-motivated sexual violence, largely ignored by U.S. law, rooted in “male supremacy” and largely perpetrated by men who justify their actions as a “natural male instinct, a natural male right.”
According to Brodsky, stealthing vitiates — renders null and void — consent because the partner consented to “touch by a condom,” she writes, “not touch by the skin of a penis.”
Both are fundamentally physically different, she argues, and thus each requires separate consent.
Brodsky's paper — “'Rape-adjacent': Imagining Legal Responses to Nonconsensual Condom Removal” — has garnered global headlines for drawing attention to a covert phenomenon. But it's also raising questions around consent, and whether secret condom removal has become a popular new “sex trend,” as some reports are making it out to be, or a case of some men behaving boorishly — and recklessly. Should stealthing, as Brodsky argues, fall under the banner of sexual violence, like date rape, and be recognized as a civil if not criminal wrong, and “not merely regrettable staples of heterosexuality”?
In fact, legal scholars say if Canadian jurisprudence is any indication, “stealthing” could amount to fraud that vitiates the consent — making the act sexual assault.
For her paper, Broadsky drew on interviews with five women and the online accounts of others.
Apart from their fear of an unwanted pregnancy or sexually transmitted infection, “all of the survivors experienced the condom removal as a disempowering, demeaning violation of a sexual agreement,” Brodsky writes in the Columbia Journal of Gender and Law.
Brodsky also logged into an online community of “perpetrators” — men who defend, and give explicit instructions in, the practice of stealthing.
Some appear motivated by the increased physical pleasure; others, she said, by the “thrill from degradation.”
Given that contemporary laws treat consent, not force, as what distinguishes sex from sexual violence, “an updated, expansive vision of gender violence might consider non-consensual condom removal a form of rape,” Brodsky writes.
Many of the women she interviewed, including those who had previously been raped, didn't see it that way. “People respond to violence in different ways,” Brodsky said in an interview. “That's ultimately why I don't take a stance in the paper on this — ‘Is this rape? Is this like rape?'
She acknowledges that women do “bad things” as well. “I heard some comments on Twitter — ‘Well, what about when women poke holes in condoms, or claim they're on the pill when they're not?' And I think those are really bad things. Don't do them.”
But she said those tactics are covered off in the broader literature on “reproductive coercion,” defined by the American College of Obstetricians and Gynecologists and others as the explicit sabotage of condoms, pills and other contraception to get a woman pregnant.
Canada's highest court famously dealt with such a case two years ago, when it unanimously upheld the sexual assault conviction of a Nova Scotia man who, desperate to keep his girlfriend from breaking up with him, poked holes in his condoms with a pin and got her pregnant. Craig Jaret Hutchinson was sentenced to 18 months in jail in 2011.
Without consent, sex is considered an assault under the criminal code.
In their majority decision, the judges wrote that when a woman has chosen not to become pregnant, “deceptions that deprive her of the benefit of that choice ... may constitute a sufficiently serious deprivation for the purposes of fraud vitiating consent.”
In an earlier case, a Toronto man was convicted of sexual assault in 2008 and sentenced to five months in jail after admitting removing a condom during sex, despite his partner's “express instructions” she didn't want to have sex unless he used protection.
Stealthing “tells women they don't matter,” says Hilla Kerner, of Vancouver Rape Relief and Women's Shelter.