California could make nonconsensual condom removal illegal

California is set to become the first state to make removing a condom during sex without consent illegal and allow victims of ‘stealthing’ to sue for damages

  • California could become the first state to make ‘stealthing’ illegal
  • ‘Stealthing’ is the nonconsensual and intentional removal or tampering with the condom during sex 
  • Assemblymember Cristina Garcia introduced a bill on Monday that would class the practice as sexual battery
  • It would allow victims to look for damages but would not lead to jail time
  • Garcia claims it causes emotional trauma and leaves victims vulnerable to unwanted pregnancy and sexually transmitted infections

California could become the first state in the United States to make removing a condom without consent during sex illegal, classing it as sexual battery.

Democratic Assembly member Cristina Garcia on Monday introduced legislation that would add nonconsensual condom removal – otherwise known as ‘stealthing’ – to the state civil code.

If passed, nonconsensual condom removal would be classed in California as sexual battery and allow a victim to look for damages. It would not lead to jail time.

‘I have been working on the issue of “stealthing” since 2017. And I won’t stop until there is some accountability for those who perpetrate the act,’ Garcia said in a statement. 

‘It’s disgusting that there are online communities that defend and encourage stealthing and give advice on how to get away with removing the condom without the consent of their partner, but there is nothing in law that makes it clear that this is a crime.’ 

California Assembly member Cristina Garcia on Monday introduced legislation that would add nonconsensual condom removal – otherwise known as ‘stealthing’ – to the state civil code

Garcia is arguing that ‘stealthing’ should be made illegal in the state

Garcia told the Washington Post that she had introduced the bill as she wanted to ensure that ‘A, victims have a legal course for justice and B, we have something in the books that facilities a discussion with all people, especially our youth, whether it’s parents, educators, whether it’s even the public safety system’. 

‘Having something in the books allows us to do the education to hopefully create a consciousness that we shouldn’t do certain things,’ Garcia added.

‘Stealthing’ is used to describe the nonconsensual and intentional removal or tampering with the condom during sexual intercourse.

The violation can occur between people who have already consented to sexual contact or are in a relationship.

According to civil rights lawyer Alexandra Brodsky, the act is experienced by many as ‘a grave violation of dignity and autonomy’.

In an article she wrote for the Columbia Journal of Gender and Law in 2017, Brodsky explained that victims could have concerns about pregnancy, sexually transmitted infections, and emotional trauma, among other issues.

‘Survivors spoke not only of betrayal but of their partners’ wholesale dismissal of their preferences and desires,’ she wrote.

‘There are people that just don’t believe this is a problem,’ Brodsky also told the Washington Post.

Stealthing was recently depicted in HBO’s ‘I May Destroy You’ which was praised by both Brodsky and Garcia.

Garcia, pictured above, already introduced similar bills in 2017 and 2018 but they failed

‘Sexual assaults, especially those on women of color, are perpetually swept under the rug,’ Garcia said. 

‘So much stigma is attached to this issue, that even after every critic lauded Micheala Coel’s, I May Destroy for its compelling depiction of the horrors of sexual abuse including of stealthing, it got zero Golden Globe nominations. That doesn’t seem like an accident or coincidence to me.’

‘Not just pop culture depictions of nonconsensual condom removal but discussion of its impact can really be powerful, both broadly in raising awareness and in giving survivors a vocabulary to express what happened to them,’ Brodsky added.

‘Without language, without media, without depictions, I think it’s easy for survivors to feel like they’re the first person this has ever happened to, or that this is just part of sex. Not that this is a violation, that they have the right to decide to have sex with a condom and that agreement was broken.’

The new legislation was welcomed by the National Domestic Violence Hotline who said that ‘stealthing is disrespecting someone’s trust for the other person’s sexual gain’.

‘It violates the trust you placed in the other person and the agreement you had with that person to respect each other’s bodies and feelings,’ they added.

Garcia’s bill would alter the California civil code to say that a person is guilty of sexual battery if they cause ‘contact between a penis, from which a condom has been removed, and the intimate part of another who did not verbally consent to the condom being removed.’

Garcia has said that the practice is an ‘illegal act’ and culprits should be held accountable

If passed, nonconsensual condom removal would be classed in California as sexual battery and allow a victim to look for damages, as pictured. It would not lead to jail time

The civil code already includes sexual battery as ‘intent to cause a harmful or offensive contact’.

Garcia already made attempts to pass a similar bill in 2017 and 2018, but it died amid push back from groups including the American Civil Liberties Union and the California Right to Life Committee

Garcia’s bill will now be referred to policy committee next month where the legislative process will begin.

It is unclear if the modified version of the bill will be supported by the groups and lawmakers who argued that it previously had unclear legal standing and carried a risk of clogging the criminal justice system.

In 2017, the California Attorneys for Criminal Justice noted that the previous bill’s language was ‘very vague’.

‘It is easy to imagine a case where the person may adjust a condom during sex, with a neutral intent, with an undesired result of accidental insemination,’ the group added.

Chloe Neely, a victims’ rights attorney with the Fierberg National Law Group, told the Post that cases involving consent such as these are very hard to prove.

‘It’s difficult for a jury to understand that consent is fluid and not a rigid on-off switch,’ she said.

‘That really helps victims and gives them a tool to hold those accountable who have violated them, and oftentimes jail is not necessarily the answer, and not something someone who has been violated wants to see as an outcome,’ Neely added of the new bill.

Garcia, pictured speaking above, was a leader of the #MeToo movement in the California Legislature but has also faced her own allegations of sexual misconduct in 2018

Garcia had said that she hopes other states will follow the model set with the state’s stealthing bill.

‘In California, we like to pride ourselves with the idea that we are leaders in national discussions, and we start with bills — whether it’s on climate change or menstrual equity,’ she said.

‘At a minimum, they allow for the discussion to continue.’

Attempts were made in 2017 to introduce a similar bill in Wisconsin but failed.

The same year, Democratic Reps. Ro Khanna, from California, and Carolyn Maloney, from New York, asked the House Judiciary Committee for a hearing to learn more about the practice as they argued that it is sexual assault.

‘Consent is not up for discussion; it is a requirement for the entirety of any sexual interaction. Stealthing violates an agreement between partners and is a dangerous form of sexual assault,’ said Khanna at the time.

‘The implications of the practice of nonconsensual condom removal are far-reaching with respect to the ongoing national conversation on the definition of consensual sex.’

Garcia was a leader of the #MeToo movement in the California Legislature but has also faced her own allegations of sexual misconduct.

She took a three-month voluntary leave of absence in 2018 as a complaint of inappropriate touching by a former legislative staffer was investigated.

The claim was not substantiated but Garcia was found to have been ‘overly familiar’.

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