Let Victims Sue for Stealthing

Section 2 provides the effective date.

Justification

"Stealthing" is the colloquial term given to the secretive and non-con- sensual removal of a condom during otherwise consensual intercourse. A recent article in the Columbia Journal of Gender and Law has brought critical attention to this practice, which describes it as "rape adja- cent" and akin to rape. Such an act can be understood to transform consensual sex - where condom usage was a condition for consent - into nonconsensual sex, leaving victims exposed to the physical risks of pregnancy and sexually transmitted disease, as well as the mental violations of dignity and autonomy.

While the term "stealthing" might be new, the practice of nonconsensual condom removal itself is not. Since the publication of the Columbia article, a growing number of victims have come forward who no longer feel that their experiences were isolated incidents. Offenders, on the other hand, have existed in online communities for some time where they describe their motivations - which often include a need for control, domination ,or sexual supremacy - as well as share tips on how to remove; or break a condom without their partner being aware. Admitted accounts from perpetrators have also pointed to gender-motivated reasons linked to gender-subordination and misogyny. While men have also been noted to be victims of nonconsensual condom removal, the majority of victims are women.

An argument for defining nonconsensual condom removal as a form of sexu- al assault revolves around the idea of affirmative consent - wherein condom removal vitiates consent. This concept was preserved in state statute with the groundbreaking 2015 "Enough is Enough" law tackling college campus sexual assault and included a uniform definition of affirmative consent. This definition states that affirmative consent is "a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding will- ingness to engage in sexual activity." Using this reasoning, if consent is based on the use of a condom and that condom is removed or not used at all without the consent or knowledge of one of the participants, the original consent is at an end. Furthermore, sex with and without a condom have very different amounts of risk involved, and are therefore separate acts that require separate consent.

Currently, no record is available indicating that a U.S. Court has ever been asked to consider condom removal. (However earlier this year, a Swiss court found a man who had removed a condom during penetrative sex without his partner's consent guilty of rape, although an appeals court later changed the conviction to a lesser charge.) Nevertheless, rape and criminal sexual assault cases are difficult to successfully prosecute.

This legislation would offer to victims a more viable cause of action to better address the varied risks and harms they endure as a result of nonconsensual condom removal. The bill creates a civil path with new tort specific to the act while prohibiting the removal of a condom during sex without both partners' affirmative permission. By passing this legislation, New York would recognize that victims of nonconsensual condom removal experience real harms - emotional, financial. and phys- ical- to which the law might provide remedy through compensation or simply an opportunity to be heard and validated.

Legislative history

A.8734-A of 2017 and 2018, referred to judiciary. Same as S.7157-A of 2018, referred to codes

Fiscal implications

None

Effective date

This act shall take effect on the ninetieth day after it shall have become a law.