Ban Condom Tampering

Section 2 sets the effective date at 90 days after signed into law.

Justification

Nonconsensual condom removal, or "stealthing" as it is commonly known, is the secretive and non-consensual 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 adjacent" and akin to rape. Stealthing occurs in situations where parties have freely agreed to engage in sexual inter- course or sexual conduct conditional upon the agreement that a sexually protective device such as a condom would be used. Its removal can be understood to violate that conditional consent and transform consensual sex into a nonconsensual act. Victims are left exposed to the physical risks of pregnancy and sexually transmitted disease, as well as the mental violations of dignity and autonomy. s.k 1 Existing law prohibits sexual activity without both parties' consent and goes into detail to define what constitutes said consent. An argument for defining noncon- sensual condom removal as a form of sexual assault revolves around the idea of affirmative consent - wherein condom removal vitiates consent. This concept is preserved in state statute through 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 willingness to engage in sexual activ- ity." 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.

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 to cite their own experiences. For some offenders, this practice goes far beyond conduct of "boys being bad", but rather representative of a more disturbing, predatory behavior. Online forums exist where offenders detail exploits, describe their motivations which often include a need for control, domi- nance or sexual supremacy - and share tips on how to remove or break a condom without their partner being aware. Admitted accounts from perpe- trators 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.

This legislation would establish an additional sexual misconduct offense wherein during an act of sexual intercourse, oral sexual conduct or anal sexual conduct a person using a sexually protective device, such as a condom, intentionally and without consent removes the device during the act; when the a person using the device intentionally and without consent tampers with the protective device and that device is used during the act; or when the person intentionally misleads the other party into believing a sexually protective device would be used when one was, in fact, not.

Legislative history

2018 Session - S.7156 - new bill - referred to Codes, no further action

Fiscal implications

None

Effective date

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