‘Stealthing’ or Non-Consensual Condom Removal (“NCCR”) has become a cause célèbre due to California’s Democratic Assembly’s proposal of a bill to make the act of stealthing “sexual battery” under the state’s Civil Code. The move followed two previous attempts to criminalise NCCR which failed, thus leading to the bill opting for a civil route. Stealthing is the act of condom removal in the middle of intercourse without the consent of the partner. The act of stealthing is more common than its terminology with a Melbourne study reporting that 1 in 3 women and 1 in 5 men have been the victims of NCCR. Victims’ apprehension to report arises due to their inability to define the experience as something wrong with them considering “I’m not sure this is rape, but. . . .” (Brodsky, 2017) or because of their experience being met with “oh-but-how-is-that-wrong” (Ram, 2018). This does not seem unusual considering that the internet is filled with sites boasting and teaching men how to stealth.
Stealthing does not find a mention in any developed jurisprudence across the world. However, certain courts have dealt with the issue in one way or another. The Supreme Court of Canada and Swiss Criminal Courts have both identified stealthing as rape (R v. Hutchinson, 2014). The issue received international attention when UK’s Supreme Court while ruling that NCCR falls under the ambit of rape, introduced the doctrine of conditional consent (Assange v. Swedish Prosecution Authority, 2011)
There is a dearth of legal remedies for NCCR but a more overlooked act is the practice of ‘reverse-stealthing’ i.e. the act of stealthing against a man, in a homosexual or a heterosexual relationship. Men are prone to the same risks of STI transmission due to unprotected sex. Another consequence of NCCR, which is an unwanted pregnancy, has also been dealt with in several cases where the victim was a man. An Ontario Court of Appeal held that the man had consented to protected sex and the woman deceived him into believing the protected nature of the intercourse leading to her getting pregnant. Although the court agreed that he suffered non-pathological emotional harm as a consequence (Assange v. Swedish Prosecution Authority, 2011), the appeal was dismissed. The Court relied on the principle that there was no physical harm caused to the man as a consequence of the act as only women can get pregnant. Thus if women promote their own pregnancies, they are free to do so; they cannot sabotage themselves. Criminalization of women’s decision to become and remain pregnant would violate their right to reproductive freedom under Article 21 of the Indian Constitution. (Suchita Srivastava v. Chandigarh Administration, 2014)
The interplay of legal parlance in India where sex itself is a taboo further aggravates the situation and suppresses the voice of victims and lends a helping hand to perpetrators. Stealthing has not received any judicial or legislative attention in the Indian context hence, the awareness and further research remains negligible. As per a 2005 study, “masculine ideals of sexual conquest, experimentation, and entitlement”, are the major causes behind risky sexual practices in India. These ideals enable NCCR, as the usage of contraceptives is not common in India with less than 5% of the population using it.
This criminal liability of stealthing in the Indian context can be scrutinised by two approaches-
First, the interpretation of existing rape laws in India. A plain reading of Section 375 of IPC clarifies that no explicit mention of stealthing has been made in the country’s penal provisions. However, the explanation to Section 375 defines consent as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.” Thus it is clear that the statute honors consent for the specific act for which the consent was given. This implies that the victims of NCCR consent to the specific act of intercourse with protection, but with the subsequent removal of the said protection, the consent does not get carried forward to further acts arising from a previous act. Moreover, this consent being revocable can be withdrawn upon the conduct of an act which was not consented to. Withdrawal of consent after the act is rape only when the consent is vitiated by factors mentioned in Section 90 IPC. This section negates consent given under a misconception of fact such as the surreptitious removal of contraceptive unbeknownst to the victim.
Second, approach to view stealthing via a criminal lens involves the recognition of various risks involved in unprotected sex. Unprotected intercourse carries with itself higher risks of unwanted pregnancies and STI transmission which could have significant medical implications. Stealthing has been identified as an active method of birth control sabotage (Moore, et al., 2010). It inherently takes away the right of planned parenthood from the victim. Stealthing has also been recognized as a means of intentional HIV transmission (Klein, 2014) which invites penal liability under Section 270 of IPC which defines the punishment for a malignant act done to spread infection or disease dangerous to life. Apart from the physical and medical complications, stealthing as an act harms the bodily autonomy of a person by attacking their sexual agency. This causes acute mental trauma as has been reported in a study where women who had been a victim of NCCR were less confident to decline unwanted sexual advances and felt less in control of their own bodies. (Boadle, et al., 2020)
The above analysis explicates that Stealthing has all the ingredients of a crime but is not yet categorized as one. Researchers and policymakers have tended to opt for civil rather than criminal mechanisms in their approach with respect to Stealthing. The reasons cited for the prior rejection of the California Assembly Bill to criminalise stealthing include concerns over overcrowding of prisons. It is imperative to note such an approach for a criminal justice system is detrimental for victims. India should amend its criminal provisions in a way to define rape more in terms of “consent” rather than “physical force.” The authors conducted an online survey involving 1000 participants out of which 754 agreed that Stealthing amounts to rape. This highlights an increased awareness about stealthing as a gender-motivated form of sexual violence, or rather a violence with no remedy. Mrinal Satish, a professor who was involved in the process of expansion of the definition of rape in the Criminal Law (Amendment) Act, 2013 strongly believes that stealthing should be placed under the ambit of rape. Now the responsibility falls upon the lawmakers to incorporate stealthing in the judicial and criminal framework.
Assange v. Swedish Prosecution Authority (2011) EWHC.
Boadle, A., Gierer, C. & Buzwell, S., 2020. Young Women Subjected to Nonconsensual Condom Removal: Prevalence, Risk Factors, and Sexual Self-Perceptions. Violence Against Women. Available at: Young Women Subjected to Nonconsensual Condom Removal: Prevalence, Risk Factors, and Sexual Self-Perceptions – Allira Boadle, Catherine Gierer, Simone Buzwell, 2020 (sagepub.com)
Brodsky, A., 2017. ”Rape Adjacent’: Imagining Legal Responses to Nonconsensual Condom Removal’. Columbia Journal of Gender and Law, 32(2), pp. 183-210. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2954726%20#
Klein, H., 2014. Generationing, Stealthing, and Gift Giving: The Intentional Transmission of HIV by HIV-Positive Men to their HIV-Negative Sex Partners. Health Psychology Research, 2(3). Available at: https://pubmed.ncbi.nlm.nih.gov/26973945/
Moore, A., Frohwirth, L. & Miller, E., 2010. Male-reproductive control of women who have experienced intimate partner violence in the United States. Soc Sci Med, 70(11). Available at: https://pubmed.ncbi.nlm.nih.gov/20359808/
R v. Hutchinson (2014) 1 SCR.
Ram, T., 2018. Why ‘Stealthing’-removing condoms during sex without consent amounts to rape. [Online]
Available at: https://www.thenewsminute.com/article/why-stealthing-removing-condoms-during-sex-without-consent-amounts-rape-89731
[Accessed 2 April 2021].
Suchita Srivastava v. Chandigarh Administration (2014) 11 SCC.