'STEALTHING' IS NOT FUN: IT IS AN OFFENCE




“He’d literally proven himself to be unworthy of my trust...... There is no situation in which this is something I agreed to do”

“He saw the risk as zero for himself and took no interest in what it might be for me ……That hurt”


These are some of the excerpts of the transcript between Brodsky [1] and the victims of stealthing. This proves that stealthing is more than “a sexual trend”, it destroys lives.

The act of stealthing or non-consensual condom removal was in plain sight hiding as none of the victims complain against their perpetrator as the victim readily consented for intercourse with the perpetrator, it is during this consented sex that the perpetrator took advantage of that consent and broke the victim’s trust and committed the heinous act. Recently this heinous act is among the news as the state legislature of California has passed a new bill that would outlaw stealthing. The bill has been approved by the state legislature unanimously and awaits the signature of the governor to become a law. If it will be signed by the governor, California will likely become the first state in the USA to make it illegal to remove a condom without the verbal consent of a partner during sex. The bill, AB 453, would categorize non-consensual condom removal as a form of sexual battery, thus ensuring that “removing a condom without permission isn’t just immoral, but it’s illegal,” It will modify the civil code and allow victims to sue perpetrators for the injury that they suffered. This article will discuss what stealthing is, how it affects the victim and why it should be a considered crime in India.


What is stealthing?


When a partner removes a condom during sex without the other person's consent, this is known as stealthing. Stealthing is not a new thing but a question that troubles everyone is that why someone stealth a partner? One of the reasons for it is the desire to have power and control over another human being. Its root lies in deep-rooted patriarchy and misogynist rhetoric like- a “man’s right” and a “natural instinct male’s.” Or that women “deserve to be impregnated” and that “men are supposed to spread their seed—even when reproduction is not an option.” Also, the perpetrators commit the act because they find it more pleasurable, they think of it as a “natural way” to have intercourse without a condom and the women also justify the action of their perpetrators as they think that what they are doing is “natural”. Contrary to the popular belief this crime’s victims are not exclusively women; the word ‘stealthing’ itself was popularized by the LGBTQIA+ community as it was faced among the members of the community. Thus, it is not a gendered crime as victims could be anyone part of this gender spectrum.

Stealthing is a clear-cut violation of the boundary of consent and trust. It has a pernicious tendency to the health and well-being of a person and can lead to unwanted pregnancies or catching sexually transmitted diseases.


How stealthing affects its victims?


The very act of intercourse is where one person trusts the other and be open to them with all their vulnerabilities. All the victims give their consent wilfully at first and when the other person breaks their trust, they receive a great shock. They question themselves as to how they could trust such a person with their body, so the act of stealthing is not only bodily injury but it also affects the mental health of the victim. The very act of stealthing snatches away one’s right to sexual autonomy. One's right to choose how and with whom one expresses sexually is known as sexual autonomy. [2] As a result, an individual's sexual consent becomes a useful weapon for exercising sexual autonomy. However, the act of stealthing undermines one's sexual autonomy by disregarding one's sexual permission to only have protected sex.

This crime also takes place in such relationship that is on its path of separation, what happens is one of the insecure partners, to keep their partners in the relationship, brings the factor of pregnancy which is induced by stealthing. The other partner is left with no choice other than to stay in this relationship, thus using stealthing one’s autonomy can also be taken away.

Brodsky in 2017 wrote one of the first papers on the topic, where the paper described stealthing as a form of violation of contract than as assault. This is a very fallible position, as there can be no contract where the self-worth of a person connected to bodily dignity is at risk of being contractually captive, human dignity cannot be the price of consent. It is more than a breach of contract; it is the breach of the human body anyone who has suffered such an assault for the rest of their lives gets scarred-it is a mental, emotional and bodily hurt.

Sexual assault can lead to post-traumatic stress disorder (PTSD), depression, and anxiety, eating and sleeping disorders, suicidality. Sexual assault victims who also struggle with mental health issues or mental illnesses, the society looks at them differently and they too look at a society in different ways as they feel all alone. Trauma and other mental health struggles can undermine a person’s ability to concentrate at school or work because they constantly receive flashbacks of the assaults every day is a constant reminder of them for what has happened to them, thus jeopardizing their economic stability. Thus, the very act of stealthing is more than a “sexual trend”, or a simple crime.


Stealthing is a crime


When Brodsky wrote the paper on stealthing, this crime received recognition and the courtrooms of different parts of the world debated whether this crime would come under the ambit of sexual assault or rape. The issue of stealthing received a global change in the case of Assange v. Swedish Prosecution Authority, where Assange was deceived by his partner by consummating with him without any protection. Although the state did recognize the emotional trauma received by Assange, but still held that this was not any significant damage, according to the court the real damage could only be suffered by a woman as she carries the risk of getting pregnant. The United Kingdom Supreme Court ruled that Non-Consensual Condom removal (NCCR) falls within the ambit of rape and further developed the doctrine of conditional consent. Similarly, in 2014, in the case of R v. Hutchinson, the complainant gives consent to the accused to have sexual intercourse with her on the condition that he would use a condom while having sex. During intercourse accused had poked a hole in the condom due to which she became pregnant. The Supreme Court of Canada held this man liable for his action and convicted him for sexual assault. The court’s judgment heavily relied upon the definition of term ‘consent’ in section-273.1 (1) of the Criminal Code and judgment in the case of R. v. Ewanchuk in which it was held that “Society’s commitment to protecting a person’s autonomy and dignity requires that individuals have the right to determine who touches their body, and how the touching will occur.”

In India, the law solely deals with consent and non-consent. There is not enough emphasis on conditional consent. Laws here are quite black and white and it lacks the dexterity required to render act like stealthing punishable. Stealthing has not received any judicial and legislative attention so far in India. This gives a helping hand to the perpetrator to go scot-free and leaves the victim behind to suffer.


Two methodologies can be used to examine the criminal liability of stealthing in India:


Undoubtedly, there is no mention of the term ‘stealthing’ under penal law in India. However, by following two methodologies, its criminal liability can be examined. First, explanation two under section-375 of Indian Penal Code-1860 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”. It is very clear from the above- mentioned provision that ‘consent’ is an essential element for that specific act. This means that Non-Consensual Condom removal victims consent to a specific act of intercourse with protection, but that consent is not carried through to subsequent acts originating from the same action when the protection is removed. Moreover, since this consent is revocable, it can be withdrawn if an act that was not consented to is performed. Furthermore, section-90 of IPC says that “A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.” The provision mentioned under section-90 would negate the ‘consent’ given by an individual for having sexual intercourse under a misconception of facts, such as the removal of contraceptives without the victim's prior knowledge and therefore his acts would amount to rape.

Second, Stealthing can have serious repercussions such as it can lead to the spread of sexually transmitted diseases like HIV AIDS and unwanted pregnancy to women. It has been recognized as a means of intentional HIV transmission which is already a punishable offence under section-270 of IPC. Hence, our focus should be on outlawing not only the end but the means as well.


Conclusion


An act of stealthing goes against the principle of the human bodily integrity of the victim. It transcends the well-defined boundary of consent within the law. It is high time we brought stealthing under the category of a punishable offence in India as well so that liability can be fixed for such a covert act.


References

[1] Brodsky, Alexandra, 'Rape-Adjacent': Imagining Legal Responses to Non-consensual Condom Removal (2017). Columbia Journal of Gender and Law, Vol. 32, No. 2, 2017, Available at SSRN: https://ssrn.com/abstract=2954726. [2] Nicola Lacey, Unspeakable Subjects: Feminist Essays in Legal and social Theory p. 104 (1998).



* The article is written by Chirantan Kashyap and Aneesh Raj, second-year students at National Law University and Judicial Academy, Assam.

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