Yes, "Stealthing" Is Sexual Assault — & Survivors Can Take Legal Action

Photographed by Rockie Nolan
Earlier this year, the Columbia Journal for Gender and Law published an article about non-consensual condom removal, a.k.a. “stealthing.” Author Alexandra Brodsky heard from survivors of stealthing and also spent some time on the online message boards where men discuss and advocate for the act.
Brodsky’s research went viral, and stealthing became a household term, in the process also giving a name to a previously nebulous, confusing act. Writing for Broadly, Brodsky described how survivors “didn't know what to call it, and because they didn't know others had the same experience, they didn't know if they had the right to be angry.” As she explains, “just naming violence can have such power.”
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And while, sure, we’re finally talking about stealthing, it’s definitely not new. “Advocates have heard about this particular form of sexual violence for quite some time,” says Josie Torielli, assistant director of intervention programs at the New York City Alliance Against Sexual Assault. It’s important for survivors to know that stealthing is not “no big deal,” and it’s 100% okay to seek out help if it happens to you. In fact, along with counseling, you can take legal action if you want. Here are some things you should know if you decide to go that route.
If you have experienced sexual violence and are in need of crisis support, please call the RAINN Sexual Assault Hotline at 1-800-656-HOPE (4673).
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Yes, stealthing is sexual assault.

“The stealthing partner has unilaterally decided what kind of sexual act will be participated in by both parties,” says Caitlin Prior, a staff attorney and training supervisor at Day One, an NYC-based organization that works to end dating abuse. “The stealthing partner has made decisions about the other partner's health, well-being, future, family plans, emotional and physical well-being without a care for the other partner's position.” That’s sexual assault.

And stealthing can be incredibly traumatic. While writing her aforementioned article, Brodsky heard from survivors who, on top of worries about sexually transmitted infections and pregnancy, also experienced “a less concrete, but deeply felt feeling of violation.” According to Torielli, “If you’re consenting to sexual activity, but not consenting to a form of sexual activity, that’s certainly a form of sexual violence, which could be quite disturbing, activating, and upsetting.”
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If you choose to take legal action, you have a few options.

Thanks, in part, to Brodsky's research, lawmakers across the country have started to push the conversation forward. On Wednesday, Buzzfeed reported that two U.S. representatives had sent a letter to the House Judiciary Committee urging members to classify stealthing as rape. In May, a lawmaker in Wisconsin introduced a bill to define stealthing as non-consensual sex. And during that month, a California representative proposed a bill that would make stealthing a form of rape. Around the country, however, there’s currently no federal law against stealthing, Prior says, which means legal protections vary depending on the state you’re in.

That doesn’t mean that there’s no recourse, though. In New York, for example, Prior says that survivors of stealthing do have some legal options available to them. You can go the criminal process route and involve police and district attorneys (more information on that can be found here and here), go through your school via a Title IX proceeding if you’re a student (for now, at least — you can learn more about Title IX complaints here), or you can file a civil action through family court. You can also try all of the above at once.
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Here's what you should know if you want to go through family court.

If someone decides go through family court — which is a type of civil court in New York, where Prior practices — they can ask for an order of protection. This would mean that the person who harmed you may be ordered to stop seeing you, contacting you, or committing certain offenses against you. Violating these court orders could result in additional penalties, such as arrest or an extended order of protection. It’s practical as well as symbolic. “The purpose is to protect someone from current and future violence,” Prior says. “It can also be a way to send a message that what the harm-doer did is not okay; [it’s] a way to seek justice.” (You can find more information about orders of protection here.)

Aside from an order of protection, in family court the accused can be sentenced to jail time, or made to receive counseling. In terms of survivors seeking money for damages, Prior herself does not ask for restitution (although that is technically possible in family court). However, she may ask the accused to pay for the survivor’s medical expenses from the incident or for the survivor’s counseling. “Money is rarely at the center of an order of protection case in family court — it is about protection, not restitution,” she says.

One snag, though: New York family court has designated a set list of crimes and violations as family offenses, and stealthing isn’t one of them. “There are only four sexual offenses that are also family offenses — sexual misconduct, forcible touching, sexual abuse in the third degree, and sexual abuse in the second degree — so I would likely have to fit stealthing into one of those four offenses,” she says. She could also argue that it caused emotional harm, or if someone became pregnant or got an STI by stealthing, she could make the case that stealthing caused physical harm.

Essentially, Prior has to prove that stealthing was a part of one of these pre-designated family offenses. She likens it to shoving a square peg into a round hole. “We’re really fitting our clients’ experience into this pre-decided idea of what a family offense or what an experience of violence might be,” she says. And all of this maneuvering can be hard and invalidating for clients. “It can feel like their experience has not risen to the level of harm that warrants a crime or a violation,” Prior says.
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Here's what you should know if you want to go through criminal court.

While she doesn’t work in criminal court, Prior says that if a victim decided to take the criminal process route, they would file a police report, the police would investigate, and if there’s enough evidence, the case would be sent to the district attorney’s office. The district attorney would then file the case. So, whereas you can sue someone in civil court whenever you want, a criminal case has to be instigated by the district attorney — which means you first have to report the crime to the police, and then cooperate with the police and the district attorney who will initiate the actual court case.

So what does “enough evidence” mean? In criminal court, the standard of proof is higher. That means that while civil court requires proof “by a fair preponderance of the evidence” (meaning: they need to be just 51% sure that the person committed the crime), criminal court requires “proof beyond a reasonable doubt.” Also, Prior says if the accused doesn’t want to plead guilty, the survivor may be forced to testify, which can be stressful and add to the trauma.

That said, criminal court is more wide-ranging than civil court, which means there are more pre-designated crimes that stealthing can be fit into. This mitigates that square-peg-in-a-round-hole scenario, to some extent. On top of that, the survivor does not have to have a prior relationship with the accused, as is the case in family court, Prior says.
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Ultimately, you'll have to figure out the best path for you.

While Prior works in New York, she says that, in most states, the process would be similar. Survivors could either file in criminal or family court. They could also go through their school (if it receives federal funding) via a Title IX proceeding. The best place to start, no matter where you live, is reaching out to an advocacy organization that can direct you to both legal and mental health resources, like the Rape, Abuse, & Incest National Network (RAINN) or Safe Horizon.

You can find the type of help that’s right for you, whether that means seeking out mental health services, or talking to an attorney like Prior who can help you navigate the legal system. What’s important to remember is that there’s no doubt that this process can be complicated. But what is clear is that stealthing is a form of sexual violence. And if you’re a survivor, know that you do have options.
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