"Rape-Adjacent": Imagining Legal Responses to Nonconsensual Condom Removal

Abstract

Abstract Nonconsensual condom removal during sexual intercourse exposes victims to physical risks of pregnancy and disease and, interviews make clear, is experienced by many as a grave violation of dignity and autonomy. Such condom removal, popularly known as stealthing, can be understood to transform consensual sex into nonconsensual sex by one of two theories, one of which poses a risk of over-criminalization by demanding complete transparency about reproductive capacity and sexually transmitted infections. Adopting the alternative, preferable theory of non-consent, this Article considers possible criminal, tort, contract, and civil rights remedies currently available to victims. Ultimately, a new tort for stealthing is necessary both to provide victims with a more viable cause of action and to reflect better the harms wrought by nonconsensual condom removal. INTRODUCTION Rebecca (1) is a doctoral student living in a university town. When she is not researching for her dissertation, Rebecca works for a local rape crisis hotline. In this role, she often hears from undergraduate students at the state college. Of these callers, a significant number describe upsetting sexual contact that they struggle to name. Their partners have, during sex, removed a condom without their knowledge. Their stories often start the same way: I'm not sure this is rape, but.... Their accounts resonate with Rebecca. A boyfriend did the same thing to her when she was a college freshman. (2) Victims (3) like Rebecca say they do not know what to call the harm and United States courts have not had occasion to address and name the practice. (4) Yet, despite a lack of legal recognition, the practice is widespread and known: an online sub-community of perpetrators has identified and dubbed the practice of nonconsensually removing condoms during sex stealthing. (5) The practice puts partners at risk for unwanted pregnancies and sexually transmitted infections (STIs) and, survivors explain, it feels like a violation of trust and a denial of autonomy, not dissimilar to rape. Nonetheless, the law is largely silent in the face of what this Article will argue is widespread violence. (6) In the first Part of this Article, I describe the problem, drawing on victim interviews. Survivors make clear that, as a result of the removed condoms, they experienced fear of STIs and pregnancy and also a less concrete but deeply felt feeling of violation. I also present writings from perpetrators, whom I did not interview directly, but who have provided explanations for their behavior on online forums, to demonstrate the gendered motivations for nonconsensual condom removal. After that, I consider two possible arguments for why such condom removal should be understood to vitiate consent to sex: first, that contact with the skin of a penis is distinct from contact with a condom, and so requires separate consent, and, second, that the greater risks associated with sex without a condom transforms the contact into a new type of act outside the scope of the initial consent. Ultimately, I warn against adopting the second line of reasoning, which may unintentionally promote rape by deception claims and overly punitive treatment of people with STIs. In Part III, I consider whether and how criminal law, tort law, gender violence civil rights actions, and contract law might provide remedy to nonconsensual-condom-removal victims. Finally, I consider possible drawbacks to remedies currently available at law and make the case for a new cause of action. I. The Phenomenon Interviews with people who have experienced condom removal and online accounts from victims indicate that nonconsensual condom removal is a common practice among young, sexually active people. Both men and women (7) describe having sex with male partners with penises who, during sex, removed the condom without their knowledge. …