Is 'stealthing' sexual assault? New tort should allow for damages, law review article argues
The practice of removing a condom during sex without partner consent is widespread, and it has a name—stealthing.
And its victims should have legal remedies, according to a paper (PDF) published in the Columbia Journal of Gender and Law by lawyer Alexandra Brodsky. The Huffington Post, McClatchy and Buzzfeed News covered her views.
Stealthing has consequences, Brodsky writes. Victims fear pregnancies and sexually transmitted diseases, and they feel violated. Brodsky interviewed victims and learned that online message boards promote stealthing as a male right. In effect, Brodsky says, victims are being told they have no right to make their own sexual decisions.
But felony prosecution can be difficult under rape laws’ definition of force and nonconsent, she says. A misdemeanor sexual abuse prosecution could be an alternative. In New York, for example, misdemeanor sexual abuse is defined as subjecting another person to sexual contact without consent. Still, prosecutors may view such crimes as unlikely to result in a court win and may be reluctant to bring charges.
Tort law is another possibility, Brodsky says. Some states allow negligence or misrepresentation suits for the transmission of sexually transmitted diseases. Misrepresentation might also be an alternative if stealthing causes a pregnancy. And infliction of emotional distress could cover the emotional harm of stealthing, she argues.
Other possibilities are the tort of battery, or, in California, the tort of civil sexual battery. Some states also allow private rights of action for gender-based violence, though victims might struggle showing sufficient physical harm.
Better yet, Brodsky says, would be creation of a new tort for nonconsensual condom removal. The tort should allow for compensatory and punitive damages, as well as injunctive and declaratory relief, she says.
“The specific cause of action would promote victims’ chance of success in court by reducing reliance on judges’ willingness to fit an unrecognized harm into a pre-existing legal landscape and send a clear signal that ‘stealthing’ is inexcusable,” Brodsky writes. “At its best, such a law would clearly respond to and affirm the harm victims report by making clear that ‘stealthing’ doesn’t just ‘feel violent’—it is.”
