Stealthing Laws: Removing a Condom Without Consent

On October 7, 2021, California became the first state to make "stealthing," slang for removing a condom during sex without consent, illegal. Effective January 1, 2022, victims of stealthing can file civil lawsuits against their assailants for money damages.

Learn more about stealthing and how California's anti-stealthing law (AB 453) works.

What Is Stealthing?

According to state Assemblywoman Cristina Garcia, who sponsored AB 453, stealthing is a "new name for an ancient, sneaky practice." The term refers to the intentional removal of a condom without a partner's verbal consent (permission) during sex. (Cal. Civ. Code § 1708.5 (2021).)

For many years, people talked about stealthing, if they acknowledged it all, in private conversations and internet chat rooms. That all changed in 2017 when Alexandra Brodsky published a law review article about stealthing in the Columbia Journal of Gender and Law. Brodsky used interviews with stealthing victims and applied legal analysis to make the case that stealthing transforms consensual sex into nonconsensual sex.

It's hard to say how common stealthing is. A study published in the National Library of Medicine in 2019 found that 12% of women had experienced stealthing. An Australian study from the same year suggests it's even more widespread: one in three women and one in five men reported being victims of stealthing.

Stealthing is a physical and psychological violation that can lead to unwanted pregnancy, sexually transmitted infections (STIs), and severe emotional distress.

Is Stealthing Illegal?

California's new law amends the civil code to explicitly add stealthing to the definition of "sexual battery" (an act that results in harmful or sexually offensive contact with the intimate part of another). Victims of stealthing can sue their assailants for money (damages), but assailants won't face jail or other criminal punishment under the civil statute. (See more on the differences between civil and criminal law below.)

Is Stealthing a Crime?

California's new anti-stealthing law makes stealthing a civil offense, not a crime. The new law has an interesting (and illuminating) history. In the 2017 legislative session, Assemblywoman Cristina Garcia tried and failed to amend California's Penal Code to explicitly place stealthing within the criminal offense of sexual battery. At the time, legislators who opposed the bill argued that even though stealthing isn't specifically referenced in the criminal code, the act could be prosecuted as a sexual battery (or even rape) under existing criminal laws. So some legislators, at least, recognized that prosecutors could, in theory, already charge this conduct as a criminal offense. The Assemblywoman was more successful in a 2021 legislative session, when she introduced her bill that made it clear that the conduct was a civil sexual battery, too.

Prosecutors who would charge stealthing as a crime must prove that the conduct was a violation of California's sexual battery law. That law provides that the nonconsensual touching of the intimate parts of another person for a sexual purpose is, among other acts, a misdemeanor sexual battery. A victim of stealthing consents to touching the intimate parts of another person with a condom. Touching another person without a condom and without consent seems to fit California's existing definition of a criminal sexual battery. A person found guilty of misdemeanor sexual battery is subject to a fine, up to six months in jail, or both. (Cal. Penal Code § 243.4(e)(1) (2021).)

So much for theory. In fact, prosecuting stealthing as a sex crime rarely, if ever, happens. Victims of stealthing might not report it to the police, and it can be difficult for prosecutors to prove beyond a reasonable doubt that an assailant intentionally (and not accidentally) removed a condom (this is a classic he-said/she-said or he-said/he-said situation, with no other evidence.) The problem of proof is likely the main reason that prosecutors don't pursue these cases.

But civil cases are easier to prove—in a civil case, you have to prove only that it's more likely than not (51% likely) that your partner (the defendant) intentionally removed a condom during sex without your permission. That burden is lower than the reasonable doubt standard in criminal trials (judges sometimes describe the reasonable doubt level of confidence as a moral certainty—a tough burden to meet when an act, like stealthing, is inherently private and only the alleged victim and defendant are present when it happens).

The lower burden of proof in a civil case is one of the reasons that civil lawsuits, rather than criminal prosecutions, might be a better way to address stealthing. Simply put, stealthing survivors are more likely to win in civil court.

Consequences for Stealthing

A person who commits stealthing is liable for money damages, including but not limited to general damages, special damages, and punitive damages. (Cal. Civ. Code § 1708.5 (b) (2021).)

Special Damages

Special damages compensate victims for expenses and losses related to their injuries. They vary from case to case, but some common categories include:

• lost wages and future lost earnings
• medical bills and cost of future medical care
• transportation costs
• moving expenses, and
• property damage.

In a stealthing case, one victim's special damages might include the cost of STI testing, while another victim's special damages might cover years of therapy or even the cost of raising a child conceived as a result of stealthing.

General Damages

General damages compensate victims for non-monetary losses they endure because of their injuries. General damages can include:

• pain and suffering
• emotional distress
• physical impairment, and
• lowered quality of life (loss of enjoyment).

Stealthing exposes survivors to physical risks, like pregnancy and disease, and violates their sense of trust and safety. A general damage award is meant (to the extent possible) to make the survivor "whole" again and address the physical and psychological harm caused by stealthing.

Punitive Damages

Survivors of stealthing may be awarded punitive damages on top of compensatory (special and general) damages. Putative damages punish defendants for egregious and outrageous conduct, like sexual assault, sexual abuse of a child, and now stealthing. Punitive damages are also meant to deter similar conduct by making an example of the defendant.

It's up to the jury to decide whether—and how much—punitive damages to award. Judges and juries tend to consider the nature of the defendant's act, the amount of harm caused, and the defendant's net worth relative to the award.

Will Other States Follow California's Lead and Outlaw Stealthing?

A popular saying—"As California goes, so goes the nation"—might be true when it comes to California's ban on stealthing.

California is the first state in the United States to make stealthing illegal, but lawmakers in New York, New Jersey, Massachusetts, and Wisconsin have proposed similar bills (laws).

Congresswomen from New York and California are pushing for federal action on classifying stealthing as rape. One proposed federal law, the "Stealthing Act of 2022," identifies stealthing as a form of sexual violence and allows victims to sue perpetrators for damages, much like California's groundbreaking law. A separate bill, the "Consent is Key Act," encourages states to pass their own anti-stealthing laws by increasing federal funding for certain programs in states that do.

Stealthing is already against the law in the United Kingdom, Germany, Switzerland, Canada, New Zealand, Australia, and Singapore.

Getting Help

If you're ready to learn more about your options for seeking justice over stealthing, it might make sense to talk to a lawyer. A lawyer can help you decide on the best way forward and tell you how much time you have to file a lawsuit. An initial consultation is typically free and everything you and the attorney talk about is (and remains) confidential, whether you end up working together or not. (What you say outside the lawyer's office, including on social media, isn't confidential and can be used as evidence in court. Be thoughtful about what you choose to share.)

You can learn more about finding the right personal injury lawyer or use Nolo's directory to find an experienced personal injury lawyer today.