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

[skinster]

 

The bill, which the Legislature approved unanimously and which awaits the governor’s signature, would make it a civil offense to remove a condom during intercourse without a partner’s consent.

By Isabella Grullón Paz

Sept. 10, 2021

The California State Legislature this week approved a measure that would make the state the first to outlaw stealthing, the act of removing a condom during sex without a partner’s consent.

The bill, which was approved unanimously on Tuesday, awaits the signature of Gov. Gavin Newsom, a Democrat, who has until Oct. 10 to sign it into law. A spokesman for the governor said his office did not comment on pending bills.

If approved, the measure would amend the state’s civil definition of sexual battery and make stealthing a civil offense, meaning victims could sue their assailants for damages.

Assemblywoman Cristina Garcia of California, who sponsored the bill, said the measure would give victims another resource to hold assailants accountable. “It would also make it clear that this is not just amoral, but also illegal,” she said in an interview on Thursday.

Ms. Garcia, a Democrat, said that she had tried to pass legislation criminalizing stealthing since 2017, when a Yale University study brought widespread attention to it. But she ran into considerable opposition.

The bill that was approved this week that would make stealthing a civil offense “is a good first step,” Ms. Garcia said. She said she hoped it would lay the groundwork to eventually add stealthing to the state’s criminal code.

A study published in the National Library of Medicine in 2019 reported that 12 percent of women said that they had been a victim of stealthing. Another study that year found that 10 percent of men admitted to removing their condom during intercourse without their partner’s consent.

Alexandra Brodsky, who wrote the 2017 Yale study and is the author of “Sexual Justice,” a book that addresses various forms of institutional response to sexual harassment and assault, said that the measure approved this week could bring “political and personal power” to victims. She said that it would remove any ambiguity surrounding stealthing — which tends to begin with the consensual act of sex — by defining it as illegal.

“Civil remedies are really underutilized,” Ms. Brodsky said, adding that the kinds of remedies civil lawsuits allow for are often more useful to victims.

“There are many survivors who do not want to see the person who hurt them in prison and could really use help covering medical debt or could use help having the resources to see a therapist,” Ms. Brodsky said.

She noted that civil litigation also had a lower standard of evidence, which could make it easier for victims to prove their cases in court.

Similar bills on stealthing have been introduced in New York and in Wisconsin, but neither has passed. Ms. Garcia said she hoped that legislatures across the country would follow suit.

“It is a big week for victims,” she said. “It is a big week for discussions around these issues, and it is a big week to talk about consent.”

© 2021 The New York Times Company

 

Do you think Newsom still signs it if he is recalled on Sep 14?
New York bill is still coming.

[Bimarried001]

I don’t think this should be a big issue. Removing a condom without consent is a big difference from fucking someone raw with consent. 
I would either refuse to fuck you with a condom and if I had to give in I would not deceive and remove it without consent. 
 

 

[skinster]

@Bimarried001 You're making a judgement based on a fairly sympathetic article, not the letter of the law. I am not a legal professional but usually I try to understand where I can be possibly liable. Everybody can fully enjoy all things with consent. All you said affirmatively is that you won't deceive. 

CA bill AB-453 lists the offender to "Act with the intent to cause a harmful or offensive contact". The intent part carries the need for burden of proof for prosecution. Achieving sexual pleasure is hardly that. Harm or offense in sexual battery is more violent than deceit can be. Down the road all of them would be possibly subject to damages. And that is civil law. And included definitions in CA are SO wide - "“Offensive contact” means contact that offends a reasonable sense of personal dignity." Oh boy. The second choice in your sample makes you liable IMO under CA version.

NY state bill S4401 is penal law and is more specific IMO than CA bill, but is too early in the process for a final version - capitalization is from official document> "MUTUALLY AGREED UPON BY THE PARTIES INVOLVED WITH THE EXPLICIT UNDERSTANDING AND KNOWLEDGE" - mutual agreement and explicit understanding. And its Section III does cover the deceit in your sample scenario. But if you haven't had a mutual explicit agreement, as most stealthing situations are talked about on here (just not disclosing HIV status, or misleading about it), even if a condom was 'deployed' and subsequently removed, you're not a subject to liability under that draft of the law. And as such it can be argued that it was not a crime.

But my question was whether Newson would still sign it if he was recalled. As hypothetical as it gets.

Edited September 11, 2021 by skinster

[skinster]

This thing is removing links :

CA [think before following links] https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB453

NY [think before following links] https://www.nysenate.gov/legislation/bills/2019/s4401

[DarkroomTaker]

Does it cover purposly damaging condoms to infect people, like some of the threads confess on here? 

[rPup]

15 minutes ago, DarkroomTaker said:

Does it cover purposly damaging condoms to infect people, like some of the threads confess on here? 

or if the condom does break, what’s to say you don’t get accused of tampering?

5 hours ago, skinster said:

If approved, the measure would amend the state’s civil definition of sexual battery and make stealthing a civil offense, meaning victims could sue their assailants for damages.

This will limit the effect.

For one, Plaintiffs will need to secure a lawyer. Unless they come from money, it is limited to NGO Legal Defense Nonprofits or volunteer attorneys.

“Sucking blood from a stone. ”The bigger issue is one has to have assets to take away. It would be a waste of time to sue someone flat broke. Sure there are wage garnishments and bank garnisments; but those can’t take all the defendants money. If one has nothing, he’s got nothing to lose.

Edited September 11, 2021 by R86
Clarity

[DarkroomTaker]

15 minutes ago, R86 said:

or if the condom does break, what’s to say you don’t get accused of tampering?

 

Good point, although if they check on here, some people have given full confession. Anyway, its an endless discussion I guess.

Great post btw  R86 

[UpstateNYexplorer]

1 hour ago, R86 said:

or if the condom does break, what’s to say you don’t get accused of tampering?

This will limit the effect.

For one, Plaintiffs will need to secure a lawyer. Unless they come from money, it is limited to NGO Legal Defense Nonprofits or volunteer attorneys.

“Sucking blood from a stone. ”The bigger issue is one has to have assets to take away. It would be a waste of time to sue someone flat broke. Sure there are wage garnishments and bank garnisments; but those can’t take all the defendants money. If one has nothing, he’s got nothing to lose.

Great question. What would prevent someone from lying that the condom "broke" or what if it actually broke, which has happened to me a few times, and you are still accused of it even if it wasn't intended. Plus, as you said, what is the person has no assets to take, you're then suing just in hopes of not only proving it civilly but then getting some kind of damages from it.

[fskn]

@skinster, thanks for posting the article (which I'd seen in the Times and and was hoping to discuss on BZ) and then finding the legal text!

@R86, thanks for the practical analysis.

The heterosexual bias of the news coverage is fascinating. If we watched the legislative debate, we'd probably find similar sexism. Although the text refers to the person stealthing and to the person being stealthed using neutral words, I doubt that the legislators gave much more thought than the journalists, to the possibility that men might stealth other men. 

Side note: Last week the Times published an editorial — the paper's latest flip-flop on whether OnlyFans porn is good or bad — in which some puritanical nut explained that all porn is sexual abuse, that women who post on OnlyFans go on to become street prostitutes, and that all porn harms women. The first two claims are exaggerated but the last one really exposes the editorial board's heterosexual bias. It just doesn't occur to these "nice" people that some porn might feature only men, with not a woman in sight.

The text of the anti-stealthing law mentions removed condoms, but a judge's job is to interpret laws, so it's likely that holes or tears, short of removal, would amount to the same thing.

This law is dangerous for two reasons, which have nothing at all to do with the ethics of stealthing:

First, when the sponsor's initial effort to designate stealthing as a crime failed, she found a golden opportunity: by switching from criminal to civil law, she secured easier passage of her legislation and lowered the standard of proof. Claims of non-consent should require the highest standard of proof because most sex takes place behind closed doors, with no witnesses and no recordings, and the consent is usually oral, not written. (It would be strange indeed for partners to consent in writing before fucking. If the puritans win, maybe someday we'll have to fill out 3-part carbon forms with checkboxes for the sex acts we're willing to do, before we take off our clothes.) Why is the sponsor now afraid of the higher standard of proof in criminal law?

Second, this law creates an imbalance for heterosexuals, entrenching bias against men. There is no companion law against a woman's lying about or sabotaging her own contraception. If a man removes a condom, he will be subject to civil penalties, but a woman remains perfectly free to do the equivalent.

My purpose here isn't to say anything about the ethics of stealthing, but to point out the unintended (or, for the puritans, totally intentional) consequences of this kind of legislation.

[skinster]

 

5 hours ago, DarkroomTaker said:

Does it cover purposly damaging condoms to infect people, like some of the threads confess on here? 

5 hours ago, R86 said:

or if the condom does break, what’s to say you don’t get accused of tampering?

CA bill does not list device failure as a possible cause, only intentional removal. There is no elaboration to what is considered a protective device - only explicitly a 'condom' - so female devices potentially removed are not subject to this law, and that's explicitly sexist towards men IMO. And that's the progressive California.

NY bill has tampering listed as a codified offense, along with elaborate definitions of types of protective devices, so you'd be liable much more clearly, what would definitely lighten the necessary burden of proof for prosecution. Accidental failure is not listed, and I imagine it won't be possible to prove it easily or effectively. Of course one can argue almost anything for either side. Even if you stretch it to an extreme and slice it with a sharp nail before putting it on then claiming a failure, etc, etc.

Edited September 12, 2021 by skinster

[skinster]

4 hours ago, DarkroomTaker said:

... although if they check on here, some people have given full confession. Anyway, its an endless discussion I guess.

Indeed. You can hang yourself all by your own hand. That's why lawyers in legislature keep lawyers in courts busy and well fed. But then a bit more background info has to be available to the court - link between anonymized account on here to a certain email address with certain content notification, cross referenced to other identifiable info about you, screenshots, screenshots, - again, burden of proof beyond a shadow of a doubt. Although there are also cases when even circumstantial evidence from prosecution had been taken as fact by some local courts.

3 hours ago, UpstateNYexplorer said:

What would prevent someone from lying that the condom "broke" or what if it actually broke, which has happened to me a few times, and you are still accused of it even if it wasn't intended.

I've had a condom break, damn sure they are not a 100% reliable. But I still use a very old practice in my book. If I intend to fuck, I never come with my condoms. Then if someone insists to use one, there is a choice to decline or accept. And if it breaks for whatever reason (there are combinations of chemistry and physics <wink-wink> beyond easy explanations), I can't be accused of tampering with it as it is not of my supply.

Edited September 12, 2021 by skinster

[skinster]

1 hour ago, fskn said:

The text of the anti-stealthing law mentions removed condoms, but a judge's job is to interpret laws, so it's likely that holes or tears, short of removal, would amount to the same thing.

I disagree. Production defects, physical extremes of certain sex practices and strain from incorrect application can also be argued. The author of the law fucked up in explicitly writing in 'removal' without any other ambiguity. It if wasn't removed but still 'failed' to keep its physical integrity, I would argue it's no longer a battery. And accidents are act of god, good luck with that.

 

1 hour ago, fskn said:

This law is dangerous for two reasons, which have nothing at all to do with the ethics of stealthing:

First, when the sponsor's initial effort to designate stealthing as a crime failed, she found a golden opportunity: by switching from criminal to civil law, she secured easier passage of her legislation and lowered the standard of proof. Claims of non-consent should require the highest standard of proof because most sex takes place behind closed doors, with no witnesses and no recordings, and the consent is usually oral, not written. ... Why is the sponsor now afraid of the higher standard of proof in criminal law?

US is still a (somewhat) free country - AND you are free just as much to be mentally fucked up, and she is determined and is fucked up. But I am not interested in her. If the burden of proof is in fact lowered, that does not require you to lower the vigor of your defense. The court is not looking for an equal match between arguments to get a tie, it is looking for a winning argument. I recall a case of Duke Uni students a few years back accused of group rape. Huge head lines, expulsions from the Uni, feminism all around, and even a few lives ruined. Until it was beaten in court by the defendants. The bitch demonstrably lied. And for CA bill I have a strong suspicion it is geared towards legalized extortion through court by way of at least a civil law. Whatever sticks to the wall.

 

1 hour ago, fskn said:

Second, this law creates an imbalance for heterosexuals, entrenching bias against men. There is no companion law against a woman's lying about or sabotaging her own contraception. If a man removes a condom, he will be subject to civil penalties, but a woman remains perfectly free to do the equivalent.

My purpose here isn't to say anything about the ethics of stealthing, but to point out the unintended (or, for the puritans, totally intentional) consequences of this kind of legislation.

It is definitely sexist. And having it slide through all the legislative process in the age of Me Too's is even more startling to me that Progressive California has no lawmakers that are mindful of equality between sexes. IMO the minds are too politically fucked up to notice what smells right in front of them, but they are willing to use terminology without considerations for its use cases.

If you are that determined, you can sabotage a condom without removal and enjoy yourself in undiminished pleasures. And it won't be legally stealthing in Cali. What I imagine would produce additional creative ideas how to do it.

And if a law can be that easily bypassed, that just proves once again that it was all for popular naught and for posturing and for virtue signalling. That's why she gets paid as a state lawmaker. I haven't even looked if she has sponsored any other bills, could be a grand one hit wonder.

[ejaculaTe]

On 9/11/2021 at 3:51 PM, skinster said:

This thing is removing links :

CA [think before following links] [think before following links] https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB453

NY [think before following links] [think before following links] https://www.nysenate.gov/legislation/bills/2019/s4401

NY Senate Bill 4401 would have died at the end of the 2019-2020 legislative session. The bill introduced in the current session (2021-2022) is AB 4994. There's a "Sponsor Memo" attached to Senate Bill 4401 that explains the statutory text and the need for the amendment. (The language in the NY bill was somehow easier for me to understand than the California bill.)

[ejaculaTe]

On 9/11/2021 at 5:59 PM, DarkroomTaker said:

Does it cover purposely damaging condoms to infect people, like some of the threads confess on here? 

I'd say that even before this year's amendment to the statute (which added the specific language about removal of a condom), the statute covered intentional damage of a condom to infect a sexual partner. The statute defines "sexual battery" as acting "with the intent to cause a harmful or offensive contact... and a sexually offensive contact with that person directly or indirectly results."  I'd guess that most juries would view damaging a condom to be evidence of an "intent to cause harmful or offensive contact" and infecting (or attempting to infect) another person with HIV to be "sexually offensive contact."

Side notes: (1) The California statute is Civil Code §1708.5; it was enacted in 1990. (2) The definition of "offensive contact" has been in the statute from the start. (3) Moreover, the definition of "offensive contact" used in the statute is pretty much the same definition used in American civil law for purposes of defining "battery" (as in "assault and battery"). (4) The New York bill would amend the state criminal code. (5) The issue has come up in several criminal cases in England; the one that comes to mind at the moment is that of Daryll Rowe. He was convicted in 2017 under the Offenses Against The Person Act 1861 for infecting (or attempting to infect) sexual partners with HIV, tampering with the condom if the other man refused to go bareback.

[ErosWired]

Given the propensity for condoms to fail for a variety of causes, from excessive friction to overdryness to exposure to oils to accidental snags during application, isn’t it going to be a rather tricky business to prove intentional sabotage in a court? I can see how a serial stealther would have some difficulty explaining how his condom failed repeatedly so often the same way, but especially in the case of a single incident I can imagine a defense attorney working a reasonable doubt angle pretty heavily. Removing a condom altogether is a bit harder to explain away, but condoms fail on their own demerits too easily to hang a jail sentence on that without some pretty damning proof, I should think.