Fair warning: the following subject matter discusses sexual offenses. Sexual assault is both a common and a very serious crime. It is investigated by the police with an intensity second only to that of homicide and manslaughter.
Yes, there are defenses to these charges that are discussed later in this blog. However, sexual consent should always be clearly communicated. There should be no question or mystery. Silence is not consent. And it’s not just important the first time you’re with someone. Couples who’ve had sex before also must to consent before engaging the act every time.
“Stealthing,” is the practice of a man removing a condom during sexual intercourse without consent, when his sex partner has only consented to condom-protected sex. While victims of stealthing tend to be clear about its harms, what has been less clear is how to define it. Is it assault? And could — or rather, would — the law do anything about it?
Fedeal Legislation is Proposed to Outlaw “Stealthing.”
This month, federal legislation was introduced offering clarity and a legal remedy for survivors of stealthing. One bill introduced last month would explicitly name stealthing as a form of sexual violence and create a legal pathway for victims to sue perpetrators for damages and relief. A separate bill, called the Consent Is Key Act, would encourage states to pass their own laws authorizing civil damages for survivors by increasing funding for federal domestic violence programs in states that pass those laws.
The federal legislation mirrors a first-of-its-kind California law passed in October. That law expanded the definition of sexual battery in the state’s civil code to include removing a condom without verbal consent. The U.S. House bill defines stealthing as removing any “sexual protection barrier” without the consent of each person involved in the sexual act.
“Stealthing is a grave violation of autonomy, dignity, and trust that is considered emotional and sexual abuse,” reads the House bill, titled the Stealthing Act of 2022.
What Do Studies on Stealthing Suggest?
In the last several years, a number of researchers have attempted to quantify how many people experience nonconsensual condom removal.
In one Melbourne study, which surveyed more than 2,000 people visiting a local clinic over a three-month period in 2017, nearly one in three of the women surveyed said they had been “stealthed” at some point in their life. About 19 percent of men who had sex with other men said this had happened to them. Another 2019 study — which recruited women 21 to 30 with “increased sexual risk characteristics”— found that 12 percent of respondents said a partner engaged in stealthing (nearly half said they had experienced some form of coercive resistance to condoms).
One narrow 2019 study that recruited 626 men who were “inconsistent condom users” between the ages of 21 and 30 found that 10 percent said they had removed a condom without their partner’s consent; men with greater hostility toward women and more severe sexual aggression had “significantly higher odds of engaging in nonconsensual condom removal behavior,” the study’s author wrote.
Is Stealthing a form of Sexual Assault?
The growing narrative says “Yes.” Katie Russell, a spokesperson for the advocacy and support organization Rape Crisis, said the following:
“Ultimately what we’re talking about is rape . . . It’s not something that’s a bit cheeky or naughty to try to get away with — this is something serious that can have really damaging impacts for other person’s whole life and health.” ~Katie Russell, Spokesperson for Rape Crisis.
Defenses to Sex Crimes.
Sex crimes are very serious and being accused of committing one should be taken very seriously. While there aren’t very many, there are a few defenses to such an accusation: he or she is innocent; he or she engaged in consensual sexual activity, or he or she can’t be held guilty due to mental disease or defect.
- Actual Innocence.
Like all crimes, the most widely used defense is innocence. To prove innocence, an individual must generally be able to prove that it would be a physical impossibility to be guilty since they were at another location at the time or by providing a credible alibi. It’s the burden of the prosecution to prove that a defendant is guilty. The defendant will want to establish reasonable doubt. If he or she can do so then under the law the jury should acquit him or her.
In cases concerning an alleged victim’s intoxication, RCW 9A.44.030 offers a defense if the defendant reasonably believed that the victim was not mentally incapacitated and/or physically helpless. Again, this statutory defense exists if the alleged victim is drunk/intoxicated beyond the point of consent. The defendant must prove this defense by a preponderance of the evidence.
2. Consensual Act.
Consent is also a substantive defense. If a defendant can prove that the act was consensual, a crime does not exist. Consent means that at the time of the act of sexual intercourse and/or contact, there are actual words or conduct indicating freely given agreement to have sexual intercourse/contact.
However, it’s important to understand whom – and who cannot – provide legal consent. Those without legal capacity cannot consent no matter what. This includes minors. If an individual engages in sexual activity with a minor, it is statutory and there can be no legal consent – even if there is verbal consent. The fact that majority of assailants are known to the victims and that a large numbers of cases are associated with drinking alcohol complicates the picture.
Hire an Attorney As Soon As Possible When Facing a Potential Sex Offense.
Merely being charged with a sexual offense is devastating. An allegation of sexual misconduct can cost someone their employment, their family, their loved ones and their home. Please contact my office if you, a friend or family member are charged with a sex offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.