Why make stealthing illegal? New sexual assault laws are pointless

Arabella is at a police station to discuss the investigation into her recent rape; while out with friends, her drink was spiked, and she was raped by an unknown man in a pub’s toilets. But another sexual encounter has been on her mind, too — one that feels more ambiguous. She doesn’t really have language to describe what happened to her, nor a context that would explain why she felt uneasy about it. She asks the police offer: if a man removed his condom without informing her, then ejaculated inside of her, requiring her to take a late-night trip to a pharmacy to buy emergency contraceptives, how should she feel about it? Violated or chill? Was it a misunderstanding or was it an act of aggression?

The police officer gives her a hard, cold answer: “That’s rape.”

This is a scene in the Emmy-winning I May Destroy You, which last year served to briefly focus the conversation about sexual violence on the underreported crime of “stealthing”. In the UK, where it is set, removing a condom without the consent of your partner is illegal. The same is true in Germany, and one jurisdiction in Australia. Recently, California became the first US state to ban stealthing — or removing, damaging, or otherwise interfering with the integrity of birth control during sexual intercourse. And a few weeks ago, Chile became the latest nation to follow suit.

But the fact that stealthing is a crime doesn’t necessarily help Arabella. She does not press charges, as she no longer has any physical evidence. She is not compensated for her purchase of emergency contraceptive. And the law doesn’t act as an arbiter between herself and the man who harmed her. It does help her in one way — by telling her definitively that her intuition is right: this act was wrong and hurtful and should not have happened. But is that enough?

When we look to address wrongs — and to expand our understanding of what causes harm — we so often look to the creation of rules, laws and institutional responses, and stop there. The act of criminalising stealthing is meant to announce to perpetrators and victims alike — who, like Arabella, and possibly her own rapist, might not know — that it is classified as rape, and comes with potential consequences. When Chilean deputies put forth the bill, lawyer and politician Gael Yeomans followed up the announcement with, “Yes, gentlemen, that is a sexual assault even if you do not like to hear it.”

All this allows politicians to say: “we are taking this seriously.” But the promise of justice is a difficult one to keep, in practice. The United Kingdom has only had one successful conviction of stealthing. In that particular case, a man removed the condom in the midst of an engagement with a sex worker, continued to have sex with her despite her protests, assaulted her, and left without paying. His overt aggression and violence — he reportedly threatened to murder the judge presiding over the trial — made it easy to find him guilty.

But the overwhelming majority will not find justice within these systems — partly because it’s a crime that can happen without the victim noticing. In Alexandra Brodsky’s survey of people who were victims of stealthing, many of them didn’t realise the condom had been removed or tampered with until after the completion of the sexual act, sometimes not even until the partner had left. This makes it almost impossible to prove it happened.

People have long struggled to prove they have been raped for the very same reason: lack of corroborative evidence or witnesses. But with stealthing, it’s even harder to prove the intention to do harm. Condoms come off and they break. Making a case that the removal or damage wasn’t accidental or inadvertent is harder even than making a case that you said no when your rapist is insisting you said yes.

The consequences of stealthing are very real, though. Those who spoke with Brodsky report scrambling for health resources after discovering what their partner had done: making appointments for STI tests, procuring PrEP to protect against possible HIV exposure, buying the morning-after pill. Some of these medical interventions have debilitating side effects, like cramps and headaches. Some might not work, meaning more medical interventions.

And all of these services can be difficult, expensive and occasionally impossible to access, depending on the victim’s location and financial situation. Even in cases of forceful rape, hospitals in America are not legally obligated to give victims PrEP or emergency contraception — Catholic hospitals in particular make it difficult to procure any medication that might interfere with a potential pregnancy.

So often, then, when citizens find themselves in crisis, they discover there is a wide gap between what is available and what is accessible, and between what might be useful to them and what they are told they can have. This is reminiscent of the pro-choice politicians who give lip service to “protecting Roe v. Wade,” while doing nothing to make abortion affordable for people with low incomes, or to restore clinics that have been shut down by anti-abortion activists’ nuisance suits, or to decentralise services away from abortion clinics — which are often the targets of harassment and threats of violence.

Sure, abortion is available — if you are lucky enough to live in a city that has a clinic or wealthy enough to travel for it, and of course if you have the funds to pay for the procedure. But it’s not accessible — doctors should be able to offer medical abortifacients directly to patients, or mail them to those in rural environments or in abusive situations.

This state of affairs has become so acceptable to most of the politicians in power that it’s very rarely discussed — even by those who say they care about reproductive justice. The subject is left to Hollywood: trying to access abortion services is so commonly understood as an arduous and complicated process that it’s become the plot of multiple films — Happening, Four Months Three Weeks and Two Days, Never Rarely Sometimes Always, Plan B. In most cases, the primary character is finally able to find the care they need, even if it drains them financially, emotionally and physically.

The new law in California makes stealthing a civil matter, giving the victim the opportunity to sue for damages in civil court. If the crime led to the transmission of a disease or an unwanted pregnancy, there is at least the chance of compensation, even if that chance is slim. The burden of proof is less heavy in civil courts than in criminal ones, but it’s difficult to imagine scenarios in which the judgement didn’t come down to trusting one person’s word over another’s — which historically hasn’t gone well for victims of sexual assault.

And this might be especially true if there isn’t a tangible result to the stealthing — no infection or pregnancy: if the victim did not accrue costs in the pursuit of health services. Was harm still done? Clearly, yes: trust has been violated, emotional fall out is likely. But when we try to convert that experience into dollars and cents — when trying to define the precise dimensions of the damage done — we reach for clarity and find only more murk.

In her 1998 essay, “The Secret Sharer: Sex, Race, and Denial in an American Small Town” — recently collected in What We Don’t Talk About When We Talk about MeToo — JoAnn Wypijewski told the story of Nushawn Williams, a young black man who infected multiple women with HIV through unprotected sex, knowing he was positive. The small town of Jamestown, New York, wanted to show it was taking the harm done to these young women seriously — and prevent any more women from being infected. And so, it filed criminal charges against Williams for reckless endangerment and statutory rape (two of his partners were underage).

Many of the townspeople had opinions on the case — about how evil Williams must be, about what was “wrong” with the women and girls who had unprotected sex with him when HIV/AIDS was all over the media. Few paid much attention, however, to what those women and girls might need now that they found themselves infected — or even what could have helped them before their encounters with Williams. There were free condoms available through the health clinic, but they weren’t accessible, because there was so little outreach in the community.

Plenty of politicians contributed to turning this local case into a nationwide scandal — Rudy Giuliani said Williams should be charged with attempted murder — but few showed any interest in expanding medical access or offering childcare services to those low-income women who had had HIV+ babies from William. Everyone got what they wanted out of the situation: the politicians burnishing their reputations, the TV commentators using the AIDS panic to gain attention, and the media who made money by creating a scandal. Everyone except the women most affected.

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