No consent = rape.
Warning: This article contains a description of sexual assault and may be triggering to some people.
Before we finished having sex, I notice a used condom lying on the floor.
“Why is that there?,” I asked my partner, an investment banker I’d met at a bar few hours earlier. “Are you not wearing any protection?”
“Mmm, yeah, I took it off. It felt uncomfortable,” he replied.
I left his flat feeling violated. I had consented to having sex with him, but his taking off the condom without my knowledge took that consent away. I felt humiliated, ashamed, dirty. Like I didn’t have a say over what happened to my body, like I had been sexually assaulted.
I went to the pharmacy to get the emergency contraceptive pill. Four anxious weeks followed as I waited to be tested for sexually transmitted diseases. The sick feeling in my stomach was eventually replaced by anger.
Until recently, I couldn’t put a name on what had happened to me. Turns out, I had been “stealthed” - a term used to describe when a man stealthily removes a condom without his sexual partner’s knowledge or consent.
A quick Google search reveals online forums of men boasting about their stealthing exploits. Some say they are motivated by increased physical pleasure; others by the “thrill of degradation” and a belief they have a right to “spread their seed”.
Victims tell of a disempowering, demeaning violation of a sexual agreement and their rights.
The sex “trend” is beginning to test legal systems around the world.
In Switzerland this month, an appeals judge upheld a one-year suspended sentence handed to a man who deliberately removed a condom without his partner knowing. His original rape conviction, however, was downgraded to one of defilement. In the United States, California lawmakers are trying to change the definition of “rape” to include stealthing.
I asked legal experts in New Zealand how a stealthing case would likely be treated here, should a victim decide to go to the police.
Wellington barrister Michael Bott says under the Crimes Act, stealthing could be considered “a form of rape,” as the law treats consent as what distinguishes sex from sexual violence.
“The key issue is consent. If sex took place with the woman agreeing to intercourse on condition that her partner wear a condom then the partner without her knowledge removes the condom, it cannot be said that intercourse occurred with the informed consent of both parties.
“To my mind it is arguable that the consent gained was brought about by fraud that would negate any claim of consent. It is therefore arguable that ‘stealthing’ is a form of rape.”
Elisabeth McDonald, a criminal law professor at the University of Canterbury, agrees that stealthing could sit within the definition of rape, or at least sexual assault, if brought before the courts.
If you’ve got someone saying, ‘Yeah, I took the condom off, and I meant to take the condom off,’ then we should assume the police would progress a charge.
While she is not aware of any domestic precedent on stealthing, similar cases have been heard in other common law jurisdictions, McDonald says.
Canada’s highest court, for example, unanimously upheld the conviction of a sexual assault conviction of a man who, desperate to keep his girlfriend from breaking up with him, poked holes in his condoms with a pin and got her pregnant.
McDonald says many stealthing cases would happen in the context of “acquaintance rape”, between those in a relationship or who know each other, where reporting and conviction rates are very low. She says the chances of such cases resulting in a conviction would depend on the individual facts.
“If you’ve got someone saying, ‘Yeah, I took the condom off, and I meant to take the condom off,’ then we should assume the police would progress a charge.
“But if they said ‘no, no, I never did that,’ or ‘it came off accidentally,’ or ‘we didn’t have that discussion about me needing to wear a condom,’ then I think that’s a whole different issue in terms of prosecutorial discretion.”
She adds: “If there was a reasonable doubt that wearing a condom wasn’t what he understood he had to do, then there would be no conviction.”
Kathryn McPhillips, executive director of HELP Auckland, an organisation that supports survivors of sexual violence, says it would treat women and men who had been stealthed like any other victim of a sex crime.
“When someone comes to us for assistance in this situation, we assist as we do any survivor of sexual violence. While whether or not the law has a remedy depends on a case by case basis, the person’s need for healing is separate to this.”
McPhillips says HELP would support victims to make a complaint to police, if that is what they wanted.
“It is our experience that police do their best to work out which law has been broken in situations like this,” she says.
*The author of this story wishes to remain anonymous.
WHO TO CONTACT FOR SUPPORT
Rape Crisis national helpline: 0800 88 33 00
HELP Auckland: 09 623 1700
HELP Wellington: 04 801 6655