Court Cases On “Stealthing” Are Few

A study published by Alexandra Brodsky at the Yale School of Law last week has brought attention to a disturbing trend called "stealthing." The term "stealthing" is given to the practice of nonconsensual condom removal during intercourse. While it seems like an obvious act of sexual violence, classifying it as such and bringing justice to victims has proven complex — which is why Brodsky's research is so important. Court cases on "stealthing" are few, but there could be more now that it's being talked about more openly.

Brodsky's study, “RAPE-ADJACENT”: IMAGINING LEGAL RESPONSES TO NONCONSENSUAL CONDOM REMOVAL was published April 20 in the Columbia Journal of Gender and Law and almost immediately took the internet by storm. For those who had never heard the term "stealthing" before, Brodsky's research was disturbing. For those who have experienced it — and subsequently grappled with what it means for something to be "rape-adjacent" — it was a kind of gruesome validation. As Brodsky points out in the introduction to her paper, stealthing is a well-known practice (particularly on certain parts of the internet), yet there is a distinct lack of legal recognition and precedent.

The act of removing a condom during sexual intercourse unbeknownst to one's partner is not only a violent violation, but opens both partners up to health risks and consequences — STDs and pregnancy among them. One of Brodsky's major arguments from a legal standpoint is that the act of stealthing violates consent. Even if the sexual relationship poses no risk of pregnancy, as in the case of same-sex couples, or neither partner has an STD, if consent was given for sexual intercourse with a condom, and the condom is removed without consent, there should be no question as to whether that nullifies consent for the entire sexual act. Online communities devoted to the act of stealthing reveal its motivations are rooted in complete disregard for a partner's safety, preferences, and well-being. That being said, there should be no question of the act's inherent malevolent intent.

Defining what stealthing is from a legal perspective is essential to bringing justice to victims — but the question of whether it constitutes rape has not been a unanimously, affirmatively answered one. Brodsky told The Independent that she wanted to undertake the research precisely because there are so many acts of sexual violence that are nameless and without a clear definition – which makes them difficult if not impossible to identify, let alone prosecute.

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That being said, in January of this year, a court in Switzerland determined that the removal of a condom without consent during intercourse constitutes rape. The case — the first of its kind in Switzerland and elsewhere — involved a woman and man who met on Tinder. The woman said that she realized after having intercourse with the man that he had removed the condom without her consent, and that, had she known this was his intention, she never would have consented to sex.

While there has been plenty of outrage online since Brodsky's paper was published, whether it will lead to offline changes in the U.S. court system similar to those Switzerland has made remains to be seen. Brodsky's paper in its entirely serves as a vital starting point for victim advocacy and, ultimately, much needed social and judicial reform.