'Rape-adjacent': imagining legal responses to nonconsensual condom removal.

• Author: Brodsky, Alexandra

Abstract

Nonconsensual condom removal during sexual intercourse exposes victims to physical risks of pregnancy and disease and, interviews make clear, is experienced by many as a grave violation of dignity and autonomy. Such condom removal, popularly known as "stealthing, "can be understood to transform consensual sex into nonconsensual sex by one of two theories, one of which poses a risk of over-criminalization by demanding complete transparency about reproductive capacity and sexually transmitted infections. Adopting the alternative, preferable theory of non-consent, this Article considers possible criminal, tort, contract, and civil rights remedies currently available to victims. Ultimately, a new tort for "stealthing " is necessary both to provide victims with a more viable cause of action and to reflect better the harms wrought by nonconsensual condom removal.

INTRODUCTION

Rebecca (1) is a doctoral student living in a university town. When she is not researching for her dissertation, Rebecca works for a local rape crisis hotline. In this role, she often hears from undergraduate students at the state college. Of these callers, a significant number describe upsetting sexual contact that they struggle to name. Their partners have, during sex, removed a condom without their knowledge. Their stories often start the same way: "I'm not sure this is rape, but...." Their accounts resonate with Rebecca. A boyfriend did the same thing to her when she was a college freshman. (2)

Victims (3) like Rebecca say they do not know what to call the harm and United States courts have not had occasion to address and name

the practice. (4) Yet, despite a lack of legal recognition, the practice is widespread and known: an online sub-community of perpetrators has identified and dubbed the practice of nonconsensually removing condoms during sex "stealthing." (5) The practice puts partners at risk for unwanted pregnancies and sexually transmitted infections (STIs) and, survivors explain, it feels like a violation of trust and a denial of autonomy, not dissimilar to rape. Nonetheless, the law is largely silent in the face of what this Article will argue is widespread violence. (6)

In the first Part of this Article, I describe the problem, drawing on victim interviews. Survivors make clear that, as a result of the removed condoms, they experienced fear of STIs and pregnancy and also a less concrete but deeply felt feeling of violation. I also present writings from perpetrators, whom I did not interview directly, but who have provided explanations for their behavior on online forums, to demonstrate the gendered motivations for nonconsensual condom removal.

After that, I consider two possible arguments for why such condom removal should be understood to vitiate consent to sex: first, that contact with the skin of a penis is distinct from contact with a condom, and so requires separate consent, and, second, that the greater risks associated with sex without a condom transforms the contact into a new type of act outside the scope of the initial consent. Ultimately, I warn against adopting the second line of reasoning, which may unintentionally promote rape by deception claims and overly punitive treatment of people with STIs.

In Part III, I consider whether and how criminal law, tort law, gender violence civil rights actions, and contract law might provide remedy to nonconsensual-condom-removal victims. Finally, I consider possible drawbacks to remedies currently available at law and make the case for a new cause of action.

1. The Phenomenon

   Interviews with people who have experienced condom removal and online accounts from victims indicate that nonconsensual condom removal is a common practice among young, sexually active people. Both men and women (7) describe having sex with male partners with penises who, during sex, removed the condom without their knowledge. Some realized their partner had removed the condom at the moment of re-penetration; others did not realize until the partner ejaculated or, in one case, notified them the next morning. (8) While survivors' narratives and responses to the experience vary, two common themes emerge from their stories. The first is that, unsurprisingly, survivors fear unwanted pregnancies and sexually transmitted infections. The second is that, apart from these specific outcomes, survivors experienced nonconsensual condom removal as a clear violation of their bodily autonomy and the trust they had mistakenly placed in their sexual partner.

   All victims' accounts expressed fear of unwanted pregnancies or STIs. One victim turned to an online forum for people with HIV in the wake of her experience because she was so worried she may have contracted the virus from her assailant. (9) Multiple survivors described their search for Plan B and appointments for STI tests. (10) Rebecca, of the rape crisis center, experienced an unequal burden to address these risks, especially after her assailant refused to help pay for emergency contraceptives. "None of it worried him. It didn't perturb him. My potential pregnancy, my potential STI," she said. "That was my burden.'" (11)

   Apart from the fear of specific bad outcomes like pregnancy and STIs, all of the survivors experienced the condom removal as a disempowering, demeaning violation of a sexual agreement. One survivor, a young political staffer in New York, described her assailant's dismissal of her will with particular poignance:

   In November, I'd been seeing this guy for a couple weeks.... We'd been sort of dating and we were hooking up at his house and he was like, "oh, I wanna have sex without a condom." And I was like, I'm really not ok with that, I'm currently not on birth control. My exact words were "that's not negotiable." [I told him,] "if that's a problem with you that's fine. I'll leave." We were hooking up and halfways through he took his condom off. Obviously I was very upset. We kinda fought about it.... I ended up talking to him about it later. [I told him,] "I'm not seeing you any more, this is why. This is really messed up." [He told me,] "Don't worry about it, trust me." That stuck with me because [he'd] literally proven [himself] to be unworthy of [my] trust.... There is no situation in which this is something I agreed to do. Obviously the part that really freaked me out ... was that it was such a blatant violation of what we'd agreed to. I set a boundary. I was very explicit. (12) Similarly, Rebecca described her experience as a "consent violation." As she put it bluntly, "That's the bottom line. I agreed to fuck him with a condom, not without it." (13) These survivors spoke not only of betrayal but of their partners' wholesale dismissal of their preferences and desires. Irin the student, said that, for her, "the harm mostly had to do with trust. He saw the risk as zero for himself and took no interest in what it might be for me and from a friend and sexual partner[.] [T]hat hurt." (14) In this way, survivors describe nonconsensual condom removal as a threat to their bodily agency and as a dignitary harm. You have no right to make your own sexual decisions, they are told. You are not worthy of my consideration.

   Given contemporary momentum to treat consent rather than force as the distinguishing factor between sex and rape, an updated, expansive vision of gender violence might consider nonconsensual condom removal a form of rape. Yet interestingly, while many interviewed victims had previously been raped, they did not see the condom removal as equivalent to sexual assault. (15) Nevertheless, they identified a clear connection. As Sara put it, stealthing is "rape-adjacent." (16) In relating their experiences with rape and condom removal, interviewees identify the latter as an often-overlooked form of sexual and gender-based violence akin to more recognizable harms.

   Assailants' narratives underscore the ties between so-called "stealthing" and other forms of sexual and gender-based violence like rape. Internet forums provide not only accounts from victims but encouragement from perpetrators. Promoters provide advice, along with explicit descriptions, for how to successfully trick a partner and remove a condom during sex. (17) "Stealthing is controversial," writes Mark Bentson, who runs a website dedicated to teaching others how to trick their sexual partners into condom-less sex. "But it's also a reality. If you want to do it, you need to know how." (18)

   Online writers who practice or promote nonconsensual condom removal root their actions in misogyny and investment in male sexual supremacy. While one can imagine a range of motivations for "stealthers"--increased physical pleasure, a thrill from degradation--online discussions suggest offenders and their defenders justify their actions as a natural male instinct--and natural male right. One commenter on an article about stealthing wrote, "It's a man's instinct to shoot his load into a woman's *****. He should never be denied that right. As a woman, it's my duty to spread my legs and let a man shoot his load into my wet ***** whenever he wants." Another defender, commenting on a blog post detailing one man's "strategy" for stealthing, explained: "Oh I completely agree with this. To me you can't have one and not the other, if she wants the guy's **** then she also has to take the guy's load!!!" A further contributor on the thread asked whether the sexual partners of "stealthers" "deserve to be impregnated." "Yes, they deserve it," another replied. "[T]hat's how god created this universe, we are born to do it," replied another, presumably referring to impregnation of women by men. "Yes!" confirmed a third. (19)

   Men who stealth assault other men display similar rhetoric focused on a man's "right" to spread his seed--even when reproduction is not an option. On a website dedicated to giving men advice about removing condoms during sex with other men, the author presents a scenario in...