She told him a condom was “non-negotiable,” and that if he would rather not use one, she would leave. The young woman, identified as “Sara” in a 2017 study, describes the encounter, saying, “I set a boundary. I was very explicit.” Yet she then discovered that her partner, a man she’d been seeing for a couple of weeks, had secretly removed the condom during sex.
“I ended up talking to him about it later,” Sara told the study’s author, the feminist civil rights attorney Alexandra Brodsky. “He told me, ‘Don’t worry about it, trust me.’ That stuck with me, because he’d literally proven himself to be unworthy of my trust.”
The man who removed the condom was telling her to trust him not to put her at risk for the potential consequences of unprotected sex – for STD infection, or for unplanned pregnancy. But if he was someone she could trust on those issues, he never would have removed the condom in the first place.
Sara was a victim of a phenomenon that, according to one study, 12% of young women say they have experienced, and, according to another, 10% of young men say they have perpetrated. Until now, however, the act has had no legal recognition and no name other than the one given to it by its perpetrators: “stealthing”, the non-consensual removal of a condom.
Now, the violation experienced by Sara and others may finally be made illegal, at least in one state. A bill introduced by California Assemblywoman Cristina Garcia has passed both houses of the state’s legislature, and would make non-consensual condom removal a civil offense. It now awaits a signature from Governor Gavin Newsom.
If the bill goes into effect, it would give victims the power to sue men who removed condoms without their permission for the non-criminal charge of sexual battery and open the door for monetary damages. The Wisconsin and New York legislatures are considering similar bills. If California’s is signed, the state will become the first in the nation to recognize stealthing as a violation in law.
Because the bill makes stealthing a civil offense, not a crime, it does not create the possibility that perpetrators will serve prison time. Instead, it makes them liable for fines and penalties if their victims prevail in court. (The pending bills in Wisconsin and New York do have criminal provisions.) But Brodsky believes that the worthiness of a civil avenue for justice should not be overlooked. “I’m glad to see California pursuing this approach,” she told me. “In my experience, many survivors find the kinds of outcomes available in civil litigation – including money damages – more meaningful and useful.”
Brodsky points out that civil courts have lower burdens of proof and offer rewards for the victims, not only punishments for the assailants. The symbolic value of the bill, too, is worth noting: the possibility for stealthing victims to have their day in court, and be remunerated for the harm they suffered, offers a route to recognition for a kind of sexual abuse that institutions have historically ignored.
For women like Sara, the reality that what their partners did to them was not right is intuitive. In Brodsky’s study, victims of stealthing recount being worried about STIs and pregnancy. These worries, they observed, seem to fall almost exclusively on their shoulders, even though the removal of the condom had not been their idea and had happened without their permission. One woman, referred to as “Rebecca”, told Brodsky that after the incident, her assailant refused to help her pay for emergency contraceptives.
“None of it worried him,” she said. “It didn’t perturb him. My potential pregnancy, my potential STI. That was my burden.” Rebecca had a reason to be worried: a 2019 survey on stealthing found that men who engaged in the practice were much more likely to be infected with an STD than men who didn’t (at a rate of 29.5% to 15.1%) and were much more likely to have sired an unintended pregnancy (at a rate of 46.7% to 25.8%).
But in addition to the medical and material concerns, women and others who have been victims of stealthing describe the incidents as degrading, hurtful and wounding to their self-respect. The removal of the condom represents a willingness to discard their preferences, an indifference to their safety and a contempt for their right to control their own bodies – and all of this comes from men who, only a few moments earlier, they had believed they could trust.
There is empirical evidence to support their sense of betrayal: the 2019 survey found that men who engaged in stealthing also had greater hostility towards women. In Brodsky’s study, a review of online communities for stealthing practitioners supports the notion that non-consensual condom removal by heterosexual men is motivated by misogynist disdain; the men, quoted at length, spoke of their own contempt for women and scorn for their partners’ desire for a condom in terms that I will not repeat here.
Stealthing poses high-stakes material risks to victims, as well as deeply felt harms to their dignity. It is galling that the practice was not already illegal. Both our law and our culture have a long history of ignoring gendered violence, and of lacking the rhetorical frameworks that make such harm legible – even when, as seems to be true in the case of stealthing, that harm is very common.
Rebecca, the survivor quoted in the 2017 study, said that she fielded many calls about the practice in her job at a local rape crisis hotline. “The stories often start the same way: ‘I’m not sure this is rape, but …’”
Melissa Sargent, the Wisconsin state representative who has sponsored the anti-stealthing bill there, also says she has been contacted by women who say they were victims of stealthing. “Everyone has their own story,” Sargent told the Associated Press. “But the common thread is, this happened to me, I knew it wasn’t right, but I didn’t know what to call it.”
One hope is that the passage of the California law might help such victims know what to call it. The stealthing bill can help make clear and definite what might have otherwise been an inchoate sense of having been wronged. With the passage of the California bill, stealthing victims will be able to see themselves as worthy of dignity, of having a right to control their own bodies, and of being entitled to negotiate their own sex lives without coercion or tricks. And the law will see them that way, too.
• This article was amended on 15 September 2021 to correct the link to the study about female victims of “stealthing”.
Moira Donegan is a Guardian US columnist