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The Netherlands punishes ‘stealthing’: What is this sex crime and which countries have made it illegal?

Firstpost logo Firstpost 15-03-2023 FP Explainers

A post-Me Too world put consent in the spotlight. It’s a word that comes up a lot in conversations about sex. But consent is nuanced. And often a deceitful and rather common form of sexual assault – “stealthing” – receives little attention. It finds no mention in many laws across the world, but The Netherlands is among nations attempting to change that. It has convicted a man for “stealthing”.

What is ‘stealthing’?

“Stealthing” is non-consensual condom removal or surreptitiously removing the condom during sex with a partner who has consented to protected intercourse. It’s something that happens often and is serious.

It can refer to a person damaging the condom before sex without their partner’s knowledge so that it becomes less effective or slyly removing it amid the act. It is dangerous as it exposes the partner to unwanted pregnancy or increases the risk of sexually transmitted diseases (STDs).

“Stealthing” was a term used within the LGBTQ+ community since 2014. In 2015, journalist and author Monica Tan described “stealthing” as “sort of” rape after she was stealthed by her then-partner.

The term became popular in 2017 as a sex trend. It is far from that. While “stealthing” does not sound as powerful as rape it is considered a sexual assault.

‘Stealthing’ is dangerous as it can lead to an unwanted pregnancy or increase the risk of getting an STD. Representational picture/Reuters © Provided by Firstpost ‘Stealthing’ is dangerous as it can lead to an unwanted pregnancy or increase the risk of getting an STD. Representational picture/Reuters

A 2017 paper “‘Rape-Adjacent’: Imagining Legal Responses to Nonconsensual Condom Removal” written by Alexandra Brodsky, a civil rights litigator and a legal fellow for the National Women’s Law Center in the United States, spoke about how “stealthing” is a “grave violation of dignity and autonomy”. The study interviewed victims of “stealthing” and proposed legal action for the assault.

In the paper, Brodsky wrote 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.”

Michaela Coel’s brilliant 2020 HBO series “I May Destroy You” brought the subject into the mainstream. In the show’s fourth episode, Coel’s 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, according to an article in CNN.

Also read: Let’s Talk about Sex: Why France is giving free condoms to young people

What do we know about the case in The Netherlands?

In the first conviction for “stealthing” in The Netherlands, a court handed a 28-year-old man a suspended jail sentence for secretly removing a condom during sex. However, it cleared him of rape.

The 28-year-old pleaded guilty to coercion at Rotterdam court after taking off the condom without warning despite the woman saying in advance that she did not want to have sex without it, reports AFP.

“This action is also called ‘stealthing’,” the court said in a statement. “In this way, he exposed her to contracting sexually transmitted diseases and an unwanted pregnancy.”

The Syrian-born suspect sent the victim texts afterwards including one that said, “You will be fine.”

A man in The Netherlands was convicted for ‘stealthing’ but not for rape. Representational picture/AFP © Provided by Firstpost A man in The Netherlands was convicted for ‘stealthing’ but not for rape. Representational picture/AFP

The judges ruled it was not rape as there was “agreement between the suspect and the complainant about the sexual penetration”, and the coercion only related to the failure to use a condom. The law in The Netherlands does not cover penetration without a condom where consent had already been given for the penetration itself, the agency reports

The man was sentenced to a three-month suspended prison sentence and a 1,000 euro fine.

In a separate case in the country, judges cleared a 25-year-old man after finding that he had not removed a condom at any time but had instead failed to put one on in the heat of the moment. The court acquitted him, saying it could not be proven that he had deliberately not used a condom after saying he would.

Dutch law has no specific offence against “stealthing” but these were the first rulings on the practice, public broadcaster NOS reported.

Where is ‘stealthing’ considered an offence?

Prosecuting “stealthing” was made possible in Germany because of a 2016 reform of the German Sexual Crime Law, which allowed for consent to weigh into a claim of sexual assault. In 2018, a German police officer was jailed for condom “stealthing” and suspended from his job in the first-of-its-kind ruling.

In May last year, a German woman was sentenced to six months in prison after she was convicted of sexual assault for secretly poking holes in her partner’s condoms. She sabotaged her partner’s condoms without his knowledge so she could become pregnant.

In May 2017, a Swiss court has upheld a 12-month suspended sentence for a man convicted of deliberately removing his condom during sex with an unconsenting partner.

In April 2021, a man from Wellington was sentenced for rape in New Zealand’s first successful prosecution of “stealthing”. The conviction was significant because it recognised everyone has a right not only to choose to consent to sexual activity but also to choose what conditions are placed on that consent, according to an article in The Conversation.

Months later, in October, the Australian Capital Territory (ACT) became the first jurisdiction in Australia to outlaw “stealthing”. According to ACT’s Crime Act, it is illegal to remove a condom during sex or to not use a condom at all, in circumstances when condom use was previously agreed on.

Stealthing is criminalised in Tasmania, New South Wales, and Victoria in Australia. In November 2022, South Australia (SA) set the tone to criminalise “stealthing” with those guilty facing penalties of up to life imprisonment. A bill to outlaw the practice was passed in the SA parliament’s upper house

In October 2021, California passed a law that made non-consensual condom removal during intercourse a civil offence. “Stealthing” is not a crime under California law but a civil offence, allowing people who experience it to sue the perpetrators directly in civil court if they choose to. But other American states have made no changes to their laws.

‘No Means No’ is written on the back of a woman during a protest in Cape Town. The act of ‘stealthing’ is considered a sexual assualt. AFP © Provided by Firstpost ‘No Means No’ is written on the back of a woman during a protest in Cape Town. The act of ‘stealthing’ is considered a sexual assualt. AFP

In England and Wales, “stealthing” is legally recognised as assault under the term “conditional consent”. Under Scottish Law, there is no specific reference to “stealthing” or condom removal as a criminal offence, according to a report in National World.

In India, there is little conversation about “stealthing”. Sex remains a taboo and that makes matters more complicated. “The law in India deals only with consent, and non-consent; it’s very black and white. It doesn’t have the finesse that can make such an act punishable, and we aren’t there yet,” told the tabloid Mid-day in 2017.

How common is ‘stealthing’?

According to an article in published in The Conversation in October 2021, “stealthing” affects more people than we might think. A 2018 study by Monash University and the Melbourne Sexual Health Centre surveyed 2,000 people and found one in three women, and almost one in five men who have sex with men had experienced “stealthing”.

A 2019 paper published in the National Library of Medicine in the US found 12 per cent of women aged 21 to 30 reported an experience with “stealthing”, the report says. Another American study of men between the ages of 21 and 30 found that 10 per cent had non-consensually removed a condom during sex. Those men admitted having done so, on average, three to four times in their lives.

With inputs from agencies

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