California becomes the first US state to outlaw stealthing

California has become the first US state to outlaw stealthing – the act of removing a condom during sex without getting the consent from your partner to do so.

The new legislation has been added to the state’s civil code, meaning that victims can sue for sexual battery. “We have stepped up in a major way in California and I hope other state legislatures follow suit,” California Assembly member Cristina Garcia, who introduced the bill, wrote on Twitter. “I hope people will build on this and continue engaging in discussion around the continuum of consent.”

As a civil offense, survivors won’t be able to bring criminal charges against their perpetrator. “I still think this should be in the penal code,” Garcia told BBC News. “If consent was broken, isn’t that the definition of rape or sexual assault?”

However, lawyer Alexandra Brodsky, who conducted a study into stealthing in 2017, told The Guardian that a civil approach may actually be more beneficial for victims. “In my experience, many survivors find the kinds of outcomes available in civil litigation – including money damages – more meaningful and useful.”

Garcia first attempted to make stealthing a criminal offence in 2017, after reading Brodsky’s work, and tried again the following year – both bills faced resistance and were either denied a hearing or rejected by a committee. Garcia’s new civil legislation was passed with no opposition.

Speaking to The New York Times last week, Garcia said: “Seeing this topic go from a young woman’s Masters thesis to a global mainstream discussion is the exciting part. This bill is allowing us to have a discussion about consent in our homes, schools, and relationships.” 

“I’m proud that California was the first in the nation to get this done,” she continued. “But also I have a sense of urgency to see other state legislatures pass similar bills so it’s clear, across all of these states, that stealthing is not just immoral but illegal.”

According to two 2019 studies by the National Library of Medicine, 12 per cent of women had fallen victim to stealthing, while 10 per cent of men admitted to non-consensually removing a condom during sex.

In an interview with BBC News in July, Rape Crisis’ Katie Russell said the charity was hearing about acts of stealthing “more and more”, but added: “It’s always difficult to tell if that’s because it’s happening more, or because people are aware of it and open to discussing.” She also described the word ’stealthing’ as “misleading”, telling the publication: “It sanitises and minimises it, because ultimately what we’re talking about is rape. We have to be crystal clear: this is non-consensual condom removal, and it’s not something that’s a bit cheeky or naughty to try and get away with – this is something serious that can have really damaging impacts for the other person’s whole life and health.”

The issue was touched upon in Michaela Coel’s 2020 drama I May Destroy You, when protagonist Arabella (played by Coel) has sex with a man who removes the condom without her knowledge. She comes to understand this as rape after hearing the topic being discussed on podcast.

California’s new bill follows similar moves by other countries over the last year. This month, the Australian Capitol Territory became the first in the country to criminalise non-consensual condom removal, identifying the act as sexual assault. As of 2020, stealthing is also punishable as a form of sexual violence in Germany and the UK.