NYT: California Moves to Outlaw ‘Stealthing,’ or Removing Condom Without Consent

[Leather69]

This is going to be a lawyers picnic.. ie did the condom break during fucking???? did a pa break it???? what was the state of the bottom re drugs etc.. .. your legislators have opened a panduras box..

[ejaculaTe]

Condom failure because of a manufacturing defect would be evidence that there was no intent to cause the harmful or offensive contact; if the defense can convince the jury that the thing broke of its own accord, the defense wins. (The testimony about quality assurance at the condom factory, to my mind, would surely be one of the stranger moments in legal history.) That defense, even if factually true, is hardly a surefire winner. If the person being sued (call him “D”) says, “Hey, I started out with one, but it broke,” the next question is “When did you discover that it broke?” That question is surely followed by “Why didn’t you stop intercourse (or whatever) when you realized it had broken?”

Facing a “it broke by itself” defense, the person bringing the lawsuit (let’s call that person “P”) will have to show that the failure was created by D. Evidence of D’s prior behavior can’t be used to show that D had a tendency to act in a particular manner. Thus, the fact that D has a history of condom failures can’t be used to prove that he broke the condom in this case. But the history of condom failure can be used to establish the absence of accident in this case. (If you think that’s a distinction only lawyers and judges would create, you’re not alone.) One condom failure is likely an accident; failure of condoms in almost all of a man’s sexual encounters isn’t bad luck, but something beginning to look like a campaign of condom sabotage.

Stray observations: (1) In a criminal prosecution, the State has to prove the elements of the crime beyond a reasonable doubt. In a civil lawsuit, for example under the California statute, the burden of proof isn’t as demanding as the criminal standard — P has to prove the case by “a preponderance of the evidence.” (2) As to whether the California statute will prove “to be a lawyer’s picnic,” since the time of Henry VIII (if not earlier), lawyers have been accused of making the law so complicated that the lawyers turn out to be the only “winner.” (3) Consent is a defense to a claim of sexual battery under California law. But if P gives consent when he’s intoxicated or under the influence of controlled substances, the consent is worthless as a defense for D. The flip side is that a jury might not be very sympathetic to P who will have admitted to using drugs.

[ErosWired]

12 hours ago, ejaculaTe said:

If the person being sued (call him “D”) says, “Hey, I started out with one, but it broke,” the next question is “When did you discover that it broke?” That question is surely followed by “Why didn’t you stop intercourse (or whatever) when you realized it had broken?”

 

The difficulty with the whole line of questioning is that the law and the complaint are predicated not simply on a question of whether someone violated consent, but the fact that there is a purported intent to do harm by intentionally exposing P to disease. But the moment that condom fails inside the body, the protective barrier has been compromised and exposure has potentially occurred whether D intended it or not, and even if he stopped intercourse the moment after breakage. The deed is done. Yes, P might have stopped intercourse to prevent any further possibility of infection, but by that point, stopping could not have prevented any possibility of infection. His failure to stop then becomes reckless rather than definitively causative. It would seem to me that this complicates (as if it weren’t already complicated) the relation of the issue of consent to the issue of assault. The same action either is, or isn’t, an assault depending on whether P intended it to be one.

 I’m not sure I understand how the quality control testimony would be useful - there is no such thing as a foolproof condom. Even if P had no malicious intent, he could simply have been woefully ignorant of chemistry and been in the habit of stroking himself hard every time prior to insertion with the help of a nice petroleum-based lube, almost guaranteeing condom failure. The fact that he experienced repeated failure does not prove intent.

He could simply explain that couldn’t understand why his condoms kept breaking, even though he had tried different brands of latex condoms. If the defense can provide an alternate plausible explanation for repeated failure, the evidence in preponderance becomes subject to interpretation. The case of D v. P becomes, for practical purposes, the case of Trojan v. Vaseline.

[BootmanLA]

All of these questions about condom failure, at least in the context of the California law (and not any proposed laws that may be pushed in the future in any other state) ignore the plain text of the California statute, which discusses "removal" of a condom. When a word such as "removal" isn't defined in the particular law, or in an encompassing section of law, such word is given its ordinary and customary meaning in English, and I don't think any dictionary's ordinary and customary definition of "removal" covers "came apart due to structural failure," whether or not such failure was coaxed along by a pinhole or incompatible lubricant or whatever. 

U.S. courts often, though not always, refer to Merriam-Webster's Dictionary for an "ordinary and customary" meaning. This may involve choosing which meaning is relevant to the particular statute; for instance, the first (1a) entry for "remove" in MW is "to change the location, position, station, or residence of, as in 'remove soldiers to the front'." That definition is clearly irrelevant, as is the 1b definition ("to transfer (a legal proceeding) from one court to another"). So we move to the second definition (2a), which reads "to move by lifting, pushing aside, or taking away or off" - and now we have a clear fit for the statute. None of those meanings for "remove" could encompass "sabotaging so that it fails".

In fact, it's not hard to argue that if the guy allowed himself to go soft for a bit, and the condom slipped off as he moved back and forth, even THAT wouldn't be "removal", because in the relevant context, "remove" is a transitive verb, implying the necessity of a "remover" specifically acting to remove the condom, as opposed to "it came off". 

Now, again - some future legislation, somewhere, may attempt to prohibit tampering with a condom such that it fails. But that'll be another fight, for another day, and it's probably telling that few states have attempted to criminalize that activity, because it would be so hard to prove (as Eroswired and others have noted).

[Guest]

On 9/15/2021 at 5:20 AM, ejaculaTe said:

Stray observations: (1) In a criminal prosecution, the State has to prove the elements of the crime beyond a reasonable doubt. In a civil lawsuit, for example under the California statute, the burden of proof isn’t as demanding as the criminal standard — P has to prove the case by “a preponderance of the evidence.” (2) As to whether the California statute will prove “to be a lawyer’s picnic,” since the time of Henry VIII (if not earlier), lawyers have been accused of making the law so complicated that the lawyers turn out to be the only “winner.” (3) Consent is a defense to a claim of sexual battery under California law. But if P gives consent when he’s intoxicated or under the influence of controlled substances, the consent is worthless as a defense for D. The flip side is that a jury might not be very sympathetic to P who will have admitted to using drugs.

This.

 

[Calgarybugchaser]

This has such a simple fix. 

Outlaw the use of condumbs. Done. 

[darckson]

17 hours ago, BootmanLA said:

All of these questions about condom failure, at least in the context of the California law (and not any proposed laws that may be pushed in the future in any other state) ignore the plain text of the California statute, which discusses "removal" of a condom. When a word such as "removal" isn't defined in the particular law, or in an encompassing section of law, such word is given its ordinary and customary meaning in English, and I don't think any dictionary's ordinary and customary definition of "removal" covers "came apart due to structural failure," whether or not such failure was coaxed along by a pinhole or incompatible lubricant or whatever. 

U.S. courts often, though not always, refer to Merriam-Webster's Dictionary for an "ordinary and customary" meaning. This may involve choosing which meaning is relevant to the particular statute; for instance, the first (1a) entry for "remove" in MW is "to change the location, position, station, or residence of, as in 'remove soldiers to the front'." That definition is clearly irrelevant, as is the 1b definition ("to transfer (a legal proceeding) from one court to another"). So we move to the second definition (2a), which reads "to move by lifting, pushing aside, or taking away or off" - and now we have a clear fit for the statute. None of those meanings for "remove" could encompass "sabotaging so that it fails".

In fact, it's not hard to argue that if the guy allowed himself to go soft for a bit, and the condom slipped off as he moved back and forth, even THAT wouldn't be "removal", because in the relevant context, "remove" is a transitive verb, implying the necessity of a "remover" specifically acting to remove the condom, as opposed to "it came off". 

Now, again - some future legislation, somewhere, may attempt to prohibit tampering with a condom such that it fails. But that'll be another fight, for another day, and it's probably telling that few states have attempted to criminalize that activity, because it would be so hard to prove (as Eroswired and others have noted).

Yeah 😂 no. I may not me licensed to practice in California but that interpretation is way out there and very unlikely.

[BREEDmeRAW]

I understand that this is Specifically about "Removal of a condom" and places the focus on a Man's Responsibilities to not remove the condom. 

What happens when both partners believe they themselves are HIV Negative and Both want sex without a condom. The Man would love to fuck her bareback but he is afraid she might get pregnant. She LIES and claims to be on the pill when she is not. The woman lied and has a kid. Is the Man who thought he was going to have great Skin-2-Skin sex without getting her pregnant NOW Responsible for the next 18 years?

It's not the same as Stealthing, but should he be forced into Child Support because she lied about being on the pill?

Condoms can break for many reasons, including wear and tear if you had the same condom in your wallet since High School. People don't look for the expiration date in the dark when they are removing their clothes because they're embarrassed about something. 

I am not a lawyer but I thought CA decriminalized the behavior because it no longer is a Death sentence and both parties are held equally accountable.

I know a few years ago CA residents said "NO" to condoms in porn and YES to Marijuana.

[BootmanLA]

3 hours ago, BREEDmeRAW said:

I understand that this is Specifically about "Removal of a condom" and places the focus on a Man's Responsibilities to not remove the condom. 

What happens when both partners believe they themselves are HIV Negative and Both want sex without a condom. The Man would love to fuck her bareback but he is afraid she might get pregnant. She LIES and claims to be on the pill when she is not. The woman lied and has a kid. Is the Man who thought he was going to have great Skin-2-Skin sex without getting her pregnant NOW Responsible for the next 18 years?

It's not the same as Stealthing, but should he be forced into Child Support because she lied about being on the pill?

Condoms can break for many reasons, including wear and tear if you had the same condom in your wallet since High School. People don't look for the expiration date in the dark when they are removing their clothes because they're embarrassed about something. 

I am not a lawyer but I thought CA decriminalized the behavior because it no longer is a Death sentence and both parties are held equally accountable.

I know a few years ago CA residents said "NO" to condoms in porn and YES to Marijuana.

Here's the thing: as you yourself point out, it's "not the same" as stealthing.

When a woman lies and says she's on the pill and gets pregnant because of unprotected sex, the man involved still had the option of protecting himself against unwanted fatherhood. Yes, condoms can break, but *used properly* that's a rare occurrence. "Used properly" includes using condom-safe lubricant, using a size that fits properly, leaving a space at the tip for collecting semen, and so forth. And it means not using the same damn condom that's been in your wallet for 2, 5, or 10 years. JFC.

When a top "lies" by removing a condom without the bottom partner's knowledge and consent, the bottom doesn't maintain the ability to protect himself against unwanted STI's. True, he can be on PrEP, but that only protects against HIV, not against any of the myriad other STI's out there. People who think "condom" and can't think beyond "HIV or pregnancy" are ignoring a lot of other things that are still valid concerns.

Bottom line: absent a man being tied down and milked for his semen, either by a woman riding on his cock or collecting it for insertion later, a man cannot father a child completely against his will. If he has sex with a woman and doesn't know how to properly use a condom, he's running that risk, even if she claims to be on the pill, have an IUD, have had a tubal ligation, or whatever.