California Passes the Nation’s First Stealthing Law

Stealthing is a concept that you likely know about, even if you are unfamiliar with the term. It refers to nonconsensual condom removal, a behavior that is alarmingly prevalent. Studies have revealed that 5% of men and nearly 19% of women knew that they experienced stealthing,[1] and nearly 10% of the young men openly admit to it.[2] Rates are likely even higher[3] for at least three reasons: (1) many victims never learn that their partners removed condoms; (2) a strong stigma against labeling the practice a form of sexual assault lingers[4]; and (3) there has been a dearth of empirical research on the issue.[5]

Until recently, the law has struggled to appropriately target and address this sexual harm.[1] But that changed in California on October 7, 2021. Thanks to the advocacy of Assembly member Cristina Garcia, the state enacted the country’s first express prohibition on stealthing.[2] The bill expands the civil definition of “sexual battery” to the removal of a condom without verbal consent during sexual activity.

Therefore, people who have experienced stealthing can now bring a lawsuit for monetary damages. The legislative development carries no criminal penalties, but many sexual assault advocates consider this preferable.[8] This is in part because of the criminal legal system’s structural failings, like race disparities and harsh carcerality. But specifically, a civil cause of action can provide sexual abuse victims the resources that they need for recovery.[9] The law also allows for punitive damages, which have a proven deterrent effect.[10]

Legislatures in New York[11] and Wisconsin[12] have considered similar measures. Hopefully other states will follow California’s suit in enacting civil causes of action for this widespread form of sexual misconduct.

If you have experienced stealthing and are interested in pursuing legal action, the victims’ rights lawyers at Sanford Heisler Sharp, LLP can help you navigate your options. The firm’s trauma-informed attorneys in California and other offices can help assess the circumstances of your case.

Footnotes

[1] Erin E. Bonar et al., Stealthing Perpetration and Victimization: Prevalence and Correlates Among Emerging Adults, 36 J. Interpersonal Violence 21 (2021).
[2] Kelly Cue Davis, “Stealthing”: Factors Associated with Young Men’s Nonconsensual Condom Removal, 38 Health Psych. 997 (2019).
[3] Research in Australia found that among the health clinic participants, 32% of women and 19% of men who have sex with men reported experiencing stealthing. Rosie L. Latimer et al. Non-consensual Condom Removal, Reported by Patients at a Sexual Health Clinic in Melbourne, Australia, 13 PLoS One 1, 11 (2018).
[4] See, e.g., Press Release, Assemblymember Cristina Garcia Assembly Bill 453 on Nonconsensual Condom Removal/Stealthing Signed by the Governor Making It the First Law in the Nation to Address Stealthing (Oct. 7, 2021), https://a58.asmdc.org/sites/a58.asmdc.org/files/2021-10/AB%20453%20-%20Stealthing%20Signed%20by%20Governor.pdf (“So much stigma is attached to this issue, that even after every critic lauded Michaela Coel’s I May Destroy You 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.”).
[5] See, e.g., Latimer et al., supra note 3, at 2.
[6] See Alexandra Brodsky, “Rape-Adjacent”: Imagining Legal Responses to Nonconsensual Condom Removal, 32.2 Colum. J. Gender & L. 183, 196–210 (2017).
[7] A.B. 453, 2021 Cal. Legis. Serv. Ch. 613 (Cal. 2021) (to be codified at Cal. Civ. Code § 1708.5(a)(4)–(5)).
[8] For a discussion of the legislation’s advantages and shortcomings, take a listen to the 1A podcast’s conversation with civil rights lawyer Alexandra Brodsky, whose scholarship on stealthing, see note 6 supra, spotlighted the issue. See NPR, Codifying Consent: California’s New Law on ‘Stealthing.’ (Nov. 8, 2021), https://www.npr.org/2021/11/08/1053504101/codifying-consent-californias-new-law-on-stealthing.
[9] The average cost of a sexual assault was $143,678 in 2015 dollars. Dana Bolger, Feature, Gender Violence Costs: Schools’ Financial Obligations Under Title IX, 125 Yale L.J. 2106, 2115 (2016). Today, that figure would be roughly $170,000. See CPI Inflation Calculator, U.S. Bureau of Lab. Stat., https://www.bls.gov/data/inflation_calculator.htm. For survivors whose assaults lead to pregnancy, childbirth, and childrearing, or life-threatening STIs, that number soars.
[10] Cf. Roseanna Sommers, Comment, The Psychology of Punishment and the Puzzle of Why Tortfeasor Death Defeats Liability for Punitive Damages, 124 Yale L.J. 1295 (2015).
[11] A.B. 4994, 2021–2022 Legis. Sess. (N.Y. 2021) (proposing an amendment to New York’s penal code).
[12] Press Release, Representative Sargent Introduces Bill to Stop “Stealth” Sexual Assault (May 4, 2017), http://www.thewheelerreport.com/wheeler_docs/files/0504sargent_01.pdf (introducing LRB-3346, which would have redefined consent in Wisconsin).

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