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The Long, Painful War on Stealthing

Stealthing looks like assault, feels like assault and is widely seen as assault, but no laws exist to prevent it. Could a new California bill change the tide?

The first time that 35-year-old Dianne had sex with her ex, she watched him put on the condom they’d both agreed to use. But when he pulled out and ejaculated on her stomach a few minutes later, it seemed to have miraculously disappeared. With a growing sense of dread, she realized that at some point he’d taken it off without her knowledge, never bothering to ask if that was okay. 

The feelings of violation hit her immediately, but it wasn’t until a few days later that the gravity of the situation sunk in. “It really hit me about two days afterwards that it was likely an intentional act,” she tells me. “I never consented to unprotected sex with him. He forced it on me. What if he did something that altered the course of my life, like gave me an STD, or impregnated me?” She felt “used” and “disgusting,” like he’d intentionally ignored her health and boundaries for his own selfish pleasure. As civil rights lawyer and stealthing researcher Alexandra Brodsky wrote in 2017, survivors describe it as a “grave violation of their dignity and bodily autonomy” and speak not only of betrayal, but of their partners’ “wholesale dismissal of their preferences and desires.” 

A few days later, she confronted her ex about it, and later sent him an article on stealthing, a form of sexual assault that occurs when someone removes a condom without their partner’s knowledge or consent. “I didn’t mean it like that,” he told her unconvincingly. “I thought it was on.” 

It’s difficult to find accurate data on how common stealthing is and who it affects, as most cases go unreported, few people admit to doing it and it’s easy for the lines of consent to be blurred past the point of simple definition. For example: If someone consented to sex in general, can they revoke permission for a specific act? Is it stealthing if the condom broke on its own? Is it really akin to rape, or is it something else entirely? 

But according to a 2014 study, nine percent of young men have removed a condom without their partner’s consent; a 2019 paper found that men stealth because “sex feels better without a condom,” they find thrill in degradation and believe they have a “right to spread their seed.” Not surprisingly, a number of online communities are dedicated to teaching men how to remove their condoms sight-unseen, as well as praising the ones who pull it off without getting caught. 

Like the vast majority of stealthing victims, Dianne didn’t report the assault. At the time, she was serving in the military in the deeply red state of Texas, and she knew she wouldn’t be taken seriously. As is currently the case in all 50 states, there are no laws that explicitly outlaw stealthing or equate it with sexual assault. And while prosecutors could try to pass it off as battery or a similar charge, current laws are so non-specific that it would be hard to argue that anything illegal actually took place. In fact, while victims of stealthing are three times more likely to see it as sexual assault than people who haven’t experienced it, there hasn’t been a single stealthing case brought to court in the U.S. Along those lines, only three countries — Canada, Germany and Switzerland — have actually taken stealthing to trial. 

A new bill in California, however, is poised to change that. Introduced by Democratic State Assembly member Cristina Garcia and partially inspired by Michaela Coel’s moving depiction of stealthing in the HBO series I May Destroy You, AB 453 would classify non-consensual condom removal as sexual battery and allow victims to sue for damages under the state’s civil code. If it passes, California would become the first state to make stealthing illegal. 

Not that it, and plenty of other states (and countries) haven’t tried. Wisconsin and New York both introduced anti-stealthing bills in 2017, and a handful of other countries like Singapore have made valiant — yet unsuccessful — attempts to get it on the books. Garcia herself has twice tried to make stealthing illegal, but her first two efforts — both of which would have amended the state’s criminal code — either died in committee or never got a hearing. AB 453 will mark her third attempt in the uphill battle to officialize stealthing as a violent and non-consensual act. 

It shouldn’t be this hard to make such a blatant violation illegal, but getting lawyers and lawmakers to sign on has been tricky because stealthing is difficult to prove. Not only does it lack a coherent legal definition, but as criminal law attorney Louis J. Shapiro explains, prosecutors would also have to prove that a condom was intentionally taken off. This is a near-impossible feat considering that condoms come off by accident all the time. With an average fail rate of between three and 12 percent, they can easily slide off or break if they’re expired, defective or improperly used, all of which could be reasonably painted as accidental occurrences, not a malicious assault. 

Likewise, it can be difficult to prove that a sexual assault took place during consensual sex (in many cases, stealthing victims consented to having sex, just not the removal of the condom). As Chloe Neely, a victim’s rights attorney with the Fierberg National Law Group told the Washington Post, “It’s difficult for a jury to understand that consent is fluid and not a rigid on-off switch,” and getting them to see consent as both nuanced and revocable involves what Garcia refers to as an “inordinate amount of perseverance and time.” 

Actually, this goes for bills relating to anything of a sexual nature; take date rape drugs, for example. As Garcia points out, lawmakers have known that drugs like rohypnol, GHB, MDMA and ketamine were being used as date rape drugs since the 1990s, but it wasn’t until 2016 that date rape became a crime. Meanwhile, we’re still figuring out how to discuss and code male rape; in some states, something can only be considered “rape” if it involves non-consensual penetration of a vagina. 

According to Garcia, all this lag time boils down to the fact we don’t take the time to discuss issues of sex and sexuality as a society. “It’s the old ‘don’t ask, don’t tell’ mentality or the mentality that the victim should have prevented the act,” she says. “But we shouldn’t teach victims how not to be raped; we should teach people not to be rapists and respect others’ autonomy and right to dignity.” Unfortunately, instilling that kind of thinking and changing the system isn’t an overnight process.

That said, AB 453 does have a secret weapon that might speed the process up. This time around, Garcia’s bill attempts to amend the state’s civil — rather than criminal — code, a move that would lower the burden of proof and allow victims to pursue damages rather than jail time. This is clutch for victims: As Dianne explains, damages are absolutely necessary in lieu of the option to press criminal charges. Her version of that was to ask her ex to pay for STI testing, which, thankfully, he did. 

Adding condom-specific language to the bill would also codify the idea that consent is possible to apply to parts of sex, not just sex as a whole. “If we make stealthing a cause of civil action, that’s a layer of accountability,” Garcia tells me. “It makes it clear to everyone that stealthing isn’t just immoral but illegal. I also hope this legislation starts a discussion in our homes, schools and social circles and leads to a better understanding of consent and its importance. A conversation can ensure we have fewer victims living with what are most often lifelong traumas.”

The next step, she continues, would be to make stealthing a crime. For now, though, she knows she has to be patient. “What I try to do is change the system, the process and the implementation,” she says. “It’s about changing the culture. But that makes the work that much more important.”

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