The act of removing a condom during sex without consent, also known as “stealthing,” could become illegal in the state of California.
A bill introduced this week by California Assemblymember Cristina Garcia, D, would classify nonconsensual condom removal as sexual battery, and would allow a victim to pursue a claim for damages under the state’s civil code.
If passed, experts say the measure would be the first such law in any state to address nonconsensual condom removal explicitly.
“I want to make sure that A, victims have a legal course for justice and B, we have something in the books that facilities a discussion with all people, especially our youth, whether it’s parents, educators, whether it’s even the public safety system,” Garcia told The Washington Post.
“Having something in the books allows us to do the education to hopefully create a consciousness that we shouldn’t do certain things,” she said.
The bill would amend the state civil code to say that an individual commits sexual battery if the person “causes contact between a penis, from which a condom has been removed, and the intimate part of another who did not verbally consent to the condom being removed.”
Awareness of the issue increased significantly about four years ago when Alexandra Brodsky, then a Yale University law student, wrote an article that was published in the Columbia Journal of Gender and Law with research on nonconsensual condom removal, writing that it’s “experienced by many as a grave violation of dignity and autonomy.”
She wrote about concerns victims had about risks such as sexually transmitted infections and unwanted pregnancy, but also about the emotional trauma, writing, “Survivors spoke not only of betrayal but of their partners’ wholesale dismissal of their preferences and desires.”
Speaking in an interview this week, Brodsky said there continues to be misunderstanding around the issue.
“There are people that just don’t believe this is a problem,” Brodsky, now a civil rights attorney, told The Post.
By definition, she said, the violation occurs between people who are already sexually intimate. The victim has already consented to some sexual contact, and this is often occurring in an existing dating or sexual relationship, Brodsky explained. The violation occurs when a condom is removed without consent.
She said that’s one reason the depiction of nonconsensual condom removal in the HBO show “I May Destroy You” — a series that boldly explores consent, trauma and recovery — was particularly powerful.
In a news release introducing her bill, Garcia also referenced the HBO series.
“Not just pop culture depictions of nonconsensual condom removal but discussion of its impact can really be powerful, both broadly in raising awareness and in giving survivors a vocabulary to express what happened to them,” Brodsky said. “Without language, without media, without depictions, I think it’s easy for survivors to feel like they’re the first person this has ever happened to, or that this is just part of sex. Not that this is a violation, that they have the right to decide to have sex with a condom and that agreement was broken.”
Garcia has twice before introduced bills related to stealthing. Those prior efforts in 2017 and again in 2018 amended the state’s penal code, but the bills either died in committee or didn’t get a hearing, according to Garcia’s office.
She said she hopes by introducing a measure that takes the civil route, more lawmakers and advocacy groups will support it.
Chloe Neely, a victims’ rights attorney with the Fierberg National Law Group, said the California bill would allow for victims to pursue damages, rather than jail time.
She said cases involving consent are “incredibly difficult to prove from a legal perspective. It’s difficult for a jury to understand that consent is fluid and not a rigid on-off switch.”
Having such a law would codify that idea. By addressing it under the civil code, she added, there’s also a lower burden of proof than if it were addressed in criminal law.
“That really helps victims and gives them a tool to hold those accountable who have violated them, and often times jail is not necessarily the answer, and not something someone who has been violated wants to see as an outcome,” Neely said.
Brodsky also said such a law would be an important tool in helping survivors.
“I think law, at its best, can express a community norm and how we should treat each other” she said. “I do think a lot of survivors would find affirmation in the fact that this state legislature agreed what happened to them was wrong.”
Garcia, known as a leader in the #MeToo movement, faced accusations of sexual misconduct in 2018. An investigation by the California assembly did not find evidence to substantiate the claim that Garcia had groped a former legislative staffer during a 2014 softball game, but found that she used vulgar language in violation of the assembly’s sexual harassment policy. A second investigation into the accusations found that Garcia was “overly familiar” with a staff member but that her behavior was not “sexual.”
Asked about the investigation, said she “respected the process, and at some point we have to respect the outcome.”
“I have always felt like I was attacked to be silenced, like so many folks are, especially women of color. And so for me, it’s important that I keep doing the work that I’m passionate about,” Garcia said. “I use the soap box for issues that I care about that other people don’t want to touch.”
Garcia said she hopes the bill can be a model for other states to pursue similar efforts.
“In California, we like to pride ourselves with the idea that we are leaders in national discussions, and we start with bills — whether it’s on climate change or menstrual equity,” she said. “At a minimum, they allow for the discussion to continue.”