Student’s ‘stealthing’ paper inspires Calif. bill

Alexandra Brodsky wrote a paper while at Yale Law School about removing a condom without consent, known as “stealthing,” because she thought laws needed to make clear that it is a form of nonconsensual sex.

The paper, published in 2017, inspired a member of the California Assembly to sponsor a bill to make stealthing illegal as a civil offense. It was passed unanimously by both houses and is awaiting the governor’s signature.

“It was possible that existing state laws related to gender violence and sexual harm might be used to bring lawsuits concerning non

consensual condom removal but I worried that unsympathetic judges or juries might not understand the violation,” Brodsky said Monday.

Brodsky, who graduated from Yale Law School in 2016, is a litigator with Public Justice, a public interest firm in Washington, D.C., that works alongside private attorneys. “I work on civil rights cases concerning abuses in schools and within the criminal legal system,” she said. Her paper on stealthing was not related to her current position.

She also has written a book, “Sexual Justice,” published in August, which she said focuses on how to address sexual harassment while being fair to both sides.

Her paper, “‘Rape-Adjacent’: Imagining Legal Responses to Nonconsensual Condom Removal,” was published in the Columbia Journal of Gender and Law. “I wrote this paper when I was in my last year in law school,” Brodsky said. “I didn’t think anyone other than my mom would read it.”

But Cristina Garcia, a Democrat who represents an Assembly district southeast of Los Angeles, read it and introduced a bill in 2017 to make stealthing illegal under the penal code. It wasn’t until the bill was changed to make the act a civil offense, which requires a lower burden or proof, that it succeeded.

Brodsky said the only other bills she is aware of were introduced in New York and Wisconsin, and both failed.

“Survivors of sexual assault face a lot of skepticism from juries when they have a preexisting sexual relationship with the person, and that’s always going to be true,” Brodsky said. Clarifying that consent to sex with a condom is violated when the condom is removed will make it easier for victims to win judgments to pay for any medical bills or psychotherapy, she said.

“I came to law school having done a lot of work around sexual harassment of students,” Brodsky said. “How people hurt each other in different ways and not all of these fit into existing legal definitions of sexual assault or sexual battery.”

In her article, Brodsky writes that “the law is largely silent” about stealthing, but that it is a form of “widespread violence” and that is not clearly defined. “Survivors make clear that, as a result of the removed condoms, they experienced fear of [sexually transmitted infections] and pregnancy and also a less concrete but deeply felt feeling of violation,” she wrote.

She also found online communities of men encouraging stealthing as a form of male dominance. “Promoters provide advice, along with explicit descriptions, for how to successfully trick a partner and remove a condom during sex,” she wrote.

The bill applies to both male and female victims and addresses removal of the condom both by the person wearing it and by their partner, known as birth control sabotage.

She said when someone brings a case, “often, there’s more evidence in these cases than people expect,” including physical evidence and posts on social media bragging about the action.

A study in 2019 about resistance to condom use professor Kelly Cue Davis of the University of Arizona, and posted by the National Library of Medicine, found 12 percent of women had been victims of stealthing, while none of the women in the study had done so. Another study that year specifically focused on stealthing, involving additional universities, found 10 percent of men admitted to having removed a condom without consent during sex.

Garcia said Brodsky’s paper was the first time she had heard the practice called stealthing. “I discovered through her work about the online community, and I decided to look into how we handle it in California,” she said.

After a number of conversations with attorneys, the conclusion was, “Maybe we can prosecute for this, maybe we can’t,” Garcia said.

Garcia said she would prefer that stealthing be illegal under both civil and criminal law, but “our goal is to prevent as much as possible having these victims, but also having due course for victims.”

Garcia said Gov. Gavin Newsom, who faces a recall election Tuesday, expressed support for the bill. The governor has until Oct. 10 to sign it into law. Newsom’s office has said it will not comment on pending legislation.

Contributed photo Alexandra Brodsky