But giving it an official name could be a major support for survivors of sexual assault, many of whom face an uphill battle in the legal system, according to an article in the Columbia Journal of Gender and Law.
Taking action may also add a new layer to the ongoing discussion about consent and sexual assault, the author said.
“I worry that victims (of stealthing) might struggle in court using current laws,” said Alexandra Brodsky
, who authored the article when she was a student at Yale Law School. She is currently a fellow at the National Women’s Law Center.
Survivors of sexual assault may face a number of “myths and biases” in court, Brodsky said. For example, jurors may refuse to see a crime as “serious,” or simply not believe the victim, in cases where the victim has had a relationship with an alleged rapist, or when their prior sexual activity is called into question.
In her article, Brodsky advocates for a new civil law that would specifically name the practice “in order to hopefully cut through some of those biases” and provide a clearer legal path for victims, she said.
The National Sexual Assault Hotline
has received calls about stealthing, according to Brian Pinero, vice president of victim services for the Rape, Abuse and Incest National Network
, which operates the hotline.
“If someone’s a victim, it’s not their job to prove something,” said Pinero. “It’s our job to receive that person … and then treat them with dignity and with respect.”
It’s impossible to say how common stealthing might be, Pinero said. What is certain, he said, is that it is clearly a breach of consent.
“You only consent to however far you want to go,” he said, adding that people can suffer real psychological and physical harms after having something like that happen to them.
These harms may include sexually transmitted infections, unwanted pregnancy and emotional distress, Brodsky wrote in her article. The emotional distress can be especially difficult for people who have experienced sexual assault in the past, Pinero said.
Brodsky could not determine how often it happens either, but she conducted a handful of interviews with women about their experiences. She also wrote about dark corners of the internet where perpetrators brag about stealthing and share tips on how to get away with it.
Since her article was published, she said women and men have reached out to Brodsky in droves.
“I’ve heard from a startling number of people, both men and women, who say this has happened to them,” she said. “A lot of people just didn’t know what to call it.”
Brodsky prefers the term “nonconsensual condom removal.”
“I don’t like the word ‘stealthing.’ It sounds like something tricky and distasteful, but kind of like a fad,” said Brodsky. “By calling it nonconsensual condom removal, we make clear what the harm is.”
Brodsky said that some people have responded with a more hostile message, saying that men and women hoping to avoid it should avoid sex in the first place.
“That’s exactly the kind of bias and sexism that I worry about victims facing with current laws,” Brodsky said.
Someone is sexually assaulted every 98 seconds in the US, according to RAINN.
But only six out of every 1,000 perpetrators wind up in jail.
There is no record that a US court has ever been asked to review a case of nonconsensual condom removal, according to the journal article. But Brodsky noted that she has heard of criminal cases in several foreign countries, like Switzerland and Canada, that have prosecuted men who have removed or broken condoms unbeknownst to their partners.
The issue came up in the extradition case and rape allegations lodged at WikiLeaks founder Julian Assange. The president of the UK’s Queen’s Bench Division
said that removing or tearing a condom without a partner’s consent would violate a 2003 law.
“It would plainly be open to a jury to hold that if (the victim) had made clear that she would only consent to sexual intercourse if Mr. Assange used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom,” the judgment
Assange has denied
the sexual assault allegations.
But Brodsky said that these criminal cases are very different from what her article covers: a civil route, or a means to sue, in the US, where state laws may differ in how they treat sexual assault.
“There are survivors who find meaning in the criminal justice system,” Brodsky said. “But I think that for many, the chance to have control over a case, to stand up in court, to receive financial restitution from the person who wronged them can be very meaningful to them.”
Brodsky said she is also focused on the bigger picture.
“Marital rape used to be legal in a lot of states,” she said. “The shift away from that not only meant that there was recourse (for victims)… but it also meant that we as a society reconceptualized women’s rights to their own bodies in marriages.
“Law can be a powerful tool for shaping social norms,” she said.