Explained: What is ‘stealthing’, and why is a new California Bill trying to add it in sexual battery?

September 14, 2021 by No Comments

California State Legislature has passed a bill that makes stealthing — the act of removing a condom during intercourse without consent — a crime. The Bill has been sent to California Governor Gavin Newsom, who has until October 10 to pass the bill. If passed, California would be the first state to criminalise the act of stealthing.

What is the Bill?

Assembly Bill 453 introduces an amendment in Section 1708.5 of the California Civil Code that talks about sexual battery and lays out when a person commits sexual battery. It includes anyone who “acts with the intent to cause a harmful or offensive contact with an intimate part” of someone else; or has an intention to cause harmful or offensive contact with someone else using his/her own intimate parts; or makes a sexually offensive contact.

In addition to this, the new amendment introduces that a person who makes a contact between “a sexual organ” and the “intimate part” of someone else, who did not verbally consent to the condom being removed, will also be charged with committing sexual battery.

The section adds that when a person is committing sexual battery on someone, they are liable to that person for general damages, special damages, punitive damages and any other damages deemed appropriate by the court.

The court can also grant equitable relief to the victim, which can include injunction, costs and any other relief deemed appropriate by the court.

The Bill doesn’t bring any changes to the criminal code, rather amends the civil code, which gives the victim a right to sue and seek damages.

The Bill has been introduced by Assembly member Cristina Garcia and is co-authored by Assembly member Blanca Rubio. Garcia had tweeted on September 8, “My bill #AB453 is on its way to the Gov’s desk, hopefully he’ll sign it & lead for the nation. It makes it clear that ‘stealthing’ or removing a condom w/out permission isn’t just immoral, but it’s illegal.”

What is stealthing?

Stealthing is an act of removing a condom during intercourse without a partner’s knowledge or consent. It is considered a form of condom use resistance.

Stealthing has been widely criticised for the possibility of contracting sexually transmissible diseases and pregnancy that can occur due to this non-consensual practice of condom removal.

A paper by Alexandra Brodsky — ‘Rape-Adjacent’: Imagining Legal Responses to Nonconsensual Condom Removal — published in Columbia Journal of Gender and Law says stealthing “can be understood to transform consensual sex into nonconsensual sex”. It further adds that non-consensual condom removal is a “gender-motivated form of sexual violence”.

According to another study, stealthing “has become a more common, serious and widespread issue in recent years”. A 2019 PMC study shows that 12 per cent of women between 21 to 30 have had a partner engage in stealthing.

What are general, special and punitive damages for sexual battery?

General damages for Sexual Battery includes financial assistance provided to the victim for the physical and emotional pain caused by Sexual Battery and the psychological trauma thereafter.

Special damages include the financial cost of therapy or psychological and psychiatric case that the victim might need.

Under California Civil Code 3294, a victim can seek punitive damages if they prove that the accused is guilty of oppression, fraud or malice.

Has any other legislation considered passing a law against stealthing?

Diane J. Savino introduced Senate Bill S4401 in New York Senate in March 2019 related to unconsented removal or tampering with a sexually protective device. According to the New York State Senate website, the Bill is currently in the senate.

In 2017, Wisconsin State Representative Melissa Sargent had introduced a Bill on stealthing. According to AP, the Bill would have required to seek consent before removing condoms or any “physical device” intended to prevent an individual from pregnancy or sexually transmitted infections.

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