Last week, California passed a law that makes stealthing, or non-consensual condom removal during intercourse, a civil offense. In doing so, they’ve officially moved this act out of a gray area: Stealthing is illegal, full stop. The state joins several countries, including the United Kingdom, Germany, Switzerland, Canada and New Zealand, that have already criminalized stealthing. New York and Wisconsin have made gestures at possibly following California’s lead, but so far have not. Why not?
It’s long past time for more widespread legislation and shifting of social norms on this issue. Stealthing has gotten more attention in the past few years, but the topic is still largely, dangerously flying under the radar.
That’s not entirely surprising, given the relatively subtle nature of the violation: It usually happens during sex that starts out as consensual. Yet the potential harm is substantial. There is the physical risk of unwanted pregnancy and sexually transmitted infections resulting from unprotected sex. (One 2019 study in the Pacific Northwest found that men who engaged in stealthing were “significantly more likely to have had a sexually transmitted infection diagnosis or have had a partner who experienced an unplanned pregnancy.”) Then there is the enduring psychological trauma of having your trust violated by an intimate partner.
Statistics on the frequency of stealthing are few and far between. A US study found that 12% of women had experienced stealthing, while an Australian study found an alarming one in three female respondents, and one in five gay male respondents, had.
In 2017, then-Columbia law student Alexandra Brodsky drew attention to stealthing in a widely-cited academic paper in which she interviewed survivors about their experiences and proposed the implementation of a law specifically addressing stealthing. Brodsky, now the author of the book “Sexual Justice,” has expressed happy surprise at California’s passage of the law, particularly making stealthing a civil offense rather than a criminal one: “A prosecution is brought to vindicate the state’s interest in law and order; a civil suit is brought to provide remedies to the person harmed,” she writes.
Inevitably, there has been pushback to the California law by civil libertarians, including writer Judith Levine, who penned a ponderous essay arguing that passing such laws “organizes the public’s often misplaced and hyperbolic fears of sexual predation into a typology of monsters, and codifies means of taming them that are often more symbolically satisfying than effective.” To sum up, making stealthing illegal is an overreaction, but also might be ineffective, so why bother?
Part of what makes stealthing a complex issue is the question of how to classify it. (It’s not, as one headline put it, a “sex trend.”) In Brodsky’s paper, she writes that “none of the interviewed victims identified their experience as a rape. Many did, however, identify a violation of agency of a kind with, if not identical to, rape.” Some have gone further than that: Cristina Garcia, the California state assemblywoman who sponsored the bill that recently became law, has said of stealthing that, although Brodsky labels it rape-adjacent, “in my mind, it’s rape.”
Sex columnist Dan Savage cited Brodsky’s terminology when he wrote about stealthing in 2019. In his response to a question from a woman who’d been stealthed by a boyfriend and was wondering whether to stay with him, he writes: “Your brand new boyfriend revealed himself to be a selfish and uncaring a–hole with no respect for your body or your boundaries. He was on his best behavior until your guard was down. Then he violated you, he sexually assaulted you, he rape-adjacent’d you.”
As popular culture so often does, it was a TV show – Michaela Coel’s brilliant 2020 HBO series “I May Destroy You” – that brought stealthing more fully into mainstream awareness, and made its own ruling on what, exactly, it is. In the show’s fourth episode, Coel’s main character, writer Arabella – who is already dealing with the aftermath of being sexually assaulted – sleeps with a fellow author who without her knowledge takes off the condom partway through sex.
She’s initially shocked but quickly dials down her anger. It’s not until the next episode that she learns, via a podcast, how common the practice is – and later calls him a rapist, on stage in front of a crowd, where they’re both doing a reading. “In the United States he’s ‘rape-adjacent,’” she adds, echoing Brodsky. “In Australia he’s ‘a bit rapey.’”
Alas, real life doesn’t often afford such neatly-scripted opportunities to hold someone publicly accountable. But there are clear measures that can help ensure stealthing stops happening so often. Other states need to follow California’s example and pass anti-stealthing bills, and we need to be talking about the subject a lot more, and more loudly.
I’ll start: Years ago, it happened to me. Like Arabella, initially I was furious – and then minimized the event. In the absence of any points of reference for what had just happened – and encouraged by the guy to chalk it up to a harmless misunderstanding – I decided it would be easier to just let it go than to lean into my gut feeling that it was wrong. Had I known then that there was a term for this act, that it was something that happened to lots of women, and that it was unlawful – even just in one state, one country – I know I would have had more resources and support to process what had happened.
Brodsky affirmed this as a common reaction in a recent interview: “A lot of the people I talked to were deeply hurt by the experience but didn’t know if they were right to feel that way. They didn’t know if what they felt as bad was really bad. In my experience, part of the value of naming these things is to affirm for survivors that they have the right not to be treated this way.”
California has affirmed it. What’s the rest of the country waiting for?