‘Stealthing’ could be considered assault say experts about secret removal of condom during sex

Haley says she knows the trauma of sexual assault. The 20-year-old Edmonton woman says she has experienced multiple forms of it.

But when she discloses the details of the latest instance, she says some people shrug it off.

That’s because Haley is referring to “stealthing,” the secretive and non-consensual removal of a condom during otherwise consensual intercourse. (CBC has agreed to not publish Haley’s full name as well as those of the other women who spoke about the practice.)

Not everyone considers stealthing akin to rape, she says.

Haley said she had consented to protected sex with a man she knew and trusted. But after a few minutes, she noticed something amiss.

“I looked down at one point, and [the condom] just wasn’t there,” she said. “It was really scary.”

After confronting the man and speaking with friends who had the same experience with him, she says she realized he’d removed the condom intentionally.

“With other people, he would find sneaky ways to take it off,” Haley said. “[He would] stop having intercourse and chat for a second, then … start again and it wouldn’t be on.”

The Columbia Journal of Gender and Law published a paper on the practice last week by Alexandra Brodsky, a fellow at the National Women’s Law Center in Washington, D.C.

Brodsky points to online communities where users describe experiences of stealthing. One community, hosted on the website The Experience Project, published a “how to” guide in which users shared tips for removing or breaking a condom without their partner’s knowledge.

One poster suggested using oil-based lubricant to degrade the latex. Another said he pretends to adjust the condom so that it falls off on its own.

“Usually, the condom comes off inside her, and I can … plausibly deny it,” the user writes.

“It’s a super, super common thing,” said Haley, noting that her friends have experienced it, too.

CBC reached out to a poster on The Experience Project forum who claimed to have removed or sabotaged a condom without consent “many” times. CBC has not yet received a response.

Experts point to gaps in Canadian law

Stealthing is not currently explicitly covered under Canadian law but could constitute crime based on a 2014 Supreme Court of Canada ruling. That decision, called R v. Hutchinson, upheld the sexual assault conviction of a man who poked holes in a condom without his partner’s knowledge. He had been convicted of aggravated sexual assault and sentenced to 18 months in prison.

The case set a precedent for situations in which a partner is put at risk of unwanted pregnancy by sabotaged birth control. But as Canadian law stands, it doesn’t necessarily include victims who can’t bear children.’

The Hutchinson case confirmed that “consent can be vitiated by deception, but only if that deception puts you at a serious risk of bodily harm,” explained Janine Benedet, a law professor at the University of British Columbia.

Men who engage in homosexual activity, for instance, might have a hard time convincing a court they’ve been exposed to that risk, Benedet says.

A woman who has sex with a man and is at risk of pregnancy has a good chance of being covered under the Hutchinson precedent, Benedet said.

“But the further away you get from that, the more challenging it’s going to be to make out a claim that this was really a fraud,” she said.

If the defendant doesn’t have a sexually transmitted infection, Benedet says, the bodily harm clause may not be triggered.

“If you’re not HIV-positive, if you don’t have any [infection], hepatitis or anything like that, then I don’t think you actually are —  at least for now —  committing a sexual assault by removing that condom.”

The way the law stands, “you do end up with a situation in which some kinds of stealthing may be criminal and others not,” she said. “It does potentially create different standards for different classes of victims.”

For the law to cover all possible stealthing cases, Benedet said, it should consider not just the physical harm that may result from deception but also how that deception compromises the idea of consent

Incomplete information, like not knowing your partner has removed a condom, “makes a ‘yes’ not really a yes,” she said.

“I would like to see the courts do more work in thinking about what voluntary consent really means,” Benedet said. “That’s really the final frontier for us.”

Confusion for victims

Dalya Israel works as a victims-services co-ordinator for the Vancouver-based organization Women Against Violence Against Women. She says people targeted by stealthers sometimes call the support centre’s crisis line, trying to figure out what’s happened to them.

“They tell themselves, ‘Well, maybe it wasn’t that bad,'” said Israel. “We’re socialized to not name violence. But we try to encourage them to name what’s happened.”

Aysha, a 23-year-old woman from Edmonton, says it took her two years to do just that after her partner slipped off his condom one day without telling her.

“I didn’t know what to say or do and didn’t really understand what was going on,” she said.

Aysha said It wasn’t until much later, when she sought support from a friend, that she realized she’d been assaulted.

Haley, too, says she didn’t know what to think about her assault until she read about it online.

“There are so many forms of sexual assault out there that haven’t been validated,” she said. “I find that people don’t take this as seriously as other sexual assault cases. I encounter a lot of skepticism about it.”

‘Natural male right’

As for why men would engage in such behaviour, the Brodsky paper looked at various online discussions of the practice and found that part of the motivation seems to be a feeling that it’s a “natural male right” to spread one’s seed.

“One commenter on an article about stealthing wrote, ‘It’s a man’s instinct to shoot his load into a woman’s *****. He should never be denied that right,'” the paper said.

“Another defender, commenting on a blog post detailing one man’s ‘strategy’ for stealthing, explained: ‘Oh I completely agree with this. To me you can’t have one and not the other, if she wants the guy’s **** then she also has to take the guy’s load!!!’

“A further contributor on the thread asked whether the sexual partners of ‘stealthers’ ‘deserve to be impregnated.’ ‘Yes, they deserve it,’ another replied.”

Brodsky found similar rhetoric even when pregnancy was not a factor — such as in cases of stealthing by men against other men.

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