Secretly Removing a Condom During Sex is Technically Legal. One State is Poised to Change That.

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Lawmakers in California approved legislation to ban “stealthing.” If signed into law, the state would be the first to explicitly outlaw the practice.

When Rebecca was a freshman in college, her boyfriend removed a condom while they had sex. He didn’t ask her permission, and she found out he’d done it only after it was over.

Later, volunteering for a rape crisis hotline, Rebecca—a pseudonym—would hear from other victims who had experienced the same thing. Most of their stories began the same way, according to a 2017 research paper by a law student at Yale University.

“I’m not sure this is rape, but…”

The practice of removing a condom during sex without consent, known as “stealthing,” is relatively common, researchers have found. Twelve percent of women said they had experienced it, according to one 2019 study, while a second study found that nearly 10% of men said they had removed a condom without their partner’s knowledge at least three times since the age of 14. But because the practice has not been clearly defined in legal terms, victims have largely been unable to seek recourse for their experiences.

In California, lawmakers hope to change that. The legislature this week approved a measure to outlaw the practice by adding stealthing to the state’s definition of sexual battery. If signed into law by Gov. Gavin Newsom, the bill would give victims of stealthing the right to seek “general damages, special damages and punitive damages” in civil court, but would not require perpetrators to face jail time or other criminal charges. 

Newsom has until Oct. 10 to sign the legislation.

California State Rep. Cristina Garcia, a Democrat and the bill’s main sponsor, said she had been working on legislation to address the issue since 2017 as a way to reduce stigma and help victims obtain “accountability for those who perpetrate the act.”

Earlier versions of the legislation would have made stealthing a crime, leaving perpetrators open to criminal charges. Legal analysts said in 2017 that the law allowed victims of stealthing to press charges for sexual battery even without language explicitly defining the act, though the burden of proof would likely prevent most from doing so.

“The issue is not available crimes, it is that evidence of the conduct will be hard to find,” said a bill analysis prepared by the state Senate Judiciary Committee in July 2017. “Was the condom taken off or did it fall off? Was the condom tampered with or did it fail? Was the woman not on birth control or did that fail? Was the sex even contingent on the use of a condom or other birth control?”

This year’s version, approved without opposition in both chambers of the legislature, removed the criminal designation, taking the “more modest step” of including stealthing in the civil code to allow victims to “bring a civil suit for damages” against the perpetrator, according to a legal analysis.

“Overall, this bill is a commonsense measure to ensure that victims of [non-consensual condom removal] have a civil remedy for the damages caused when a sexual partner intentionally violates the terms of their consent and their bodily autonomy,” it concludes.

“It’s disgusting that there are online communities that defend and encourage stealthing and give advice on how to get away with removing the condom without the consent of their partner,” Garcia said in a statement. “But there is nothing in law that makes it clear that this is a crime.”

Kate Elizabeth Queram is a senior reporter for Route Fifty and is based in Washington, D.C.

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