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That ‘new sex trend’ you’ve heard about is actually rape

Stealthing’ involves wearing a condom or other prophylactic, and then removing it without your partner’s permission or knowledge then continuing to have sex.

Read another way, it means someone agreed to have sex with you under one set of conditions, which you then fail to meet and deceive them while you’re doing it.

Put another way: rape.

That deception is inherent in the act, is evident from the term. It’s not called “removing your condom mid-intercourse and chatting about why you want to do this, and agreeing to change the sexual act half way through”. It’s called ‘stealthing’ for a reason.

Sadly the punishments for stealthers appear minimal, despite the fact UK law is clear that it’s rape.

Huffington Post and then the New York Times quote a 2016 paper by Alexandry Brodsky entitled “‘Rape-Adjacent’: Imagining Legal Responses to Nonconsensual Condom Removal'”.

Brodsky, a fellow at Yale Law School, examined the correlation between other forms of sexual assault and ‘stealthing’.

The victim consented to touch by a condom, not touch by the skin of a penis. The law is clear that one may consent to one form of sexual contact without providing blanket future consent to all sexual contact.

The Huffington Post called ‘stealthing’ illegal, and cited solid grounds that is constitutes a sexual offence in the Sexual Offences Act 2003.

Crown Prosecution Service legal guidance quotes Section 74 of the act in its definition of consent.

Section 74 defines consent as ‘if he agrees by choice, and has the freedom and capacity to make that choice’. Prosecutors should consider this in two stages. They are:

Whether he or she was in a position to make that choice freely, and was not constrained in any way. Assuming that the complainant had both the freedom and capacity to consent, the crucial question is whether the complainant agrees to the activity by choice.

Brodsky’s paper is firm on the assessment that ‘stealthing’ is a breach of consent. It argues that if there is difference in consent between penetrating with your fingers, and with your penis, why shouldn’t there be a different consent required if you’re penetrating with or without a condom.

However, the paper highlights the problems of getting a US court to consider this rape.

Yet I must admit that I cannot identify a bright line rule to determine whether sexual acts are so different as to require separate consent. Just as I must rely, in part, on current sexual practices and intuitions, so may a court—which may arrive at a different conclusion.

This is not just a horrible thing men are doing to women, it’s a horrible thing men are doing to other men, and even some women are doing to men.

Sexually transmitted diseases

On top of issues of consent, is the heightened risk of STD infections and spreading HIV.

Brodsky’s paper references arguments against punishing a person too harshly for failing to disclose an STD, as it may have broader consequence of punishing those who have STDs which they keep secret, but who do take precautions against infection.

However, both feminists and public health experts warn against too harsh laws that punish people who fail to disclose STIs — but who do not ultimately transmit disease — which, they fear, may discourage testing and invite selective enforcement against queer people and people of colour.

According to Brodsky, some courts have relied on the assumption that failure to disclose HIV vitiates otherwise valid consent.

Pregnancy

The risk of getting pregnant is huge when you remove the condom, especially if the women never finds out the man removed the protection, and therefore doesn’t know to take any kind of morning-after pill.

Stealthing is another manifestation of the sexist idea that contraception is the duty of the woman, because men are not left with carrying the child in the event of pregnancy. They have the biological ability to abandon responsibility.

People who promote ‘stealthing’

Brodsky’s report references sinister reasons why a man might ‘stealth’.

Much of it seems to boil down to ego and a belief in a ‘male right’ to penetrate without a condom.

Many of Brodsky’s sources, on forums, or some cases entire websites dedicated to ‘stealthing’, argued that it was a man’s right to impregnate, and the woman’s job to receive.

Bizarrely, ‘spreading of the male seed’ argument was also applied to homosexual relationships, where, divine intervention notwithstanding, pregnancy through intercourse is extremely unlikely.

It’s rape – we asked a lawyer

Sandra Paul, a partner at Kingsley Napley answered indy100‘s questions:

Is ‘stealthing’ considered rape in UK law?

Any penetrative sex where there is no consent is rape. The issue that makes ‘stealthing’ an offence of rape is that B (the person being penetrated) has made their consent conditional on a (functioning) condom being used. Where A (the person doing the penetrating) is aware of that condition and nevertheless, deliberately does not comply with the condition, then A does not have consent and cannot reasonably believe he has consent and so A is guilty of rape. This is very different from a mistake, where a condom falls off, bursts or if another method such as withdrawal is used and the timing makes it unsuccessful. These situations will not, without more, amount to rape.

Penetration is a continuing act. If consent is absent or withdrawn at any time, then to continue past that point may amount to rape.

Is there a legal precedent if a rape case such as this were to be prosecuted?

No, the CPS policy makes it clear that they will prosecute cases where there is an absence of consent. I am sure there have been cases where this has been the issue but I am not aware of any going to the Court of Appeal in a way that would make case law that we can rely on.

The nearest is the Divisional Court’s comments in [Julian] Assange. While the court did not have to decide on the matter, comments made by the court made it clear that under circumstances relevant to the issues raised by ‘stealthing’, i.e. where consent to penetration is conditional, the failure to comply with that condition would negative the consent.

Julian Assange has been accused of sexually assaulting two women in 2010, including tampering with condoms before sex, without consent. Assange has denied the allegations and has not been charged.

Paul continued.

A similar issue was raised in a case in 2013 which sought to challenge a CPS decision not to prosecute H[husband] for rape. W’s [wife’s] consent to penetration was on the condition that H withdrew before ejaculation. On one occasion, H deliberately did not withdraw and W fell pregnant. There was verifiable evidence that at the time H penetrated W, he had no intention of withdrawing before ejaculation. So reading the way the judicial wind is blowing, it is likely to be that the court (and legal advisers) will make decisions in line with the interpretation above. As such it might be some time before there is (a need for) ‘case law’ to further clarify the point.

Do you think current legislation is clear enough to respond to it and what problems would a prosecutor have?

Yes, the issue is fundamentally one of consent. We have a very clear definition of consent  – s74 of the Sexual Offences Act 2003 ‘ a person consents if he agrees by choice, and has the freedom and capacity to make that choice’. Choice has to be informed choice. Whatever the imperfections in the legislation, they apply equally to this factual scenario. As always, the issue is going to come down to the ability of the crown, and the defence, to evidence what was said and done (usually in private) that amounted consent or the absence of consent.

Sandra Paul also added:

I am really pleased to hear about anything that increases the likelihood that people, particularly young people, will have a conversation about sex and consent and what that means. This needs to be backed by accessible, practical information. ‘Stealthing’, and by that I mean a deliberate act intended to undermine the efficacy of a condom or other method of protection (as opposed to an accident),  is not pranking or funny. Fundamentally,  it is often associated with other forms of control and disrespect which are warning signs. If this has happened to you, or if you have done this to someone, there is really good help available.

If you don’t have consent, it’s rape.

So if you’re ‘stealthing’, stop it right now because it means you’re a rapist.

HT Huffington Post, Babe, BBC Newsbeat, NY Daily News

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