Earlier this month, the California legislature unanimously passed a law that would make it illegal for someone to remove a condom during sex without their partner’s consent, a profound violation commonly known as “stealthing.” Assuming California Governor Gavin Newsom signs the bill, which he has until October 10 to do, it will be the first statute of its kind in the United States.
No one is more surprised than me to see this bill’s success. Assemblywoman Cristina Garcia, the bill’s sponsor, said she was inspired in part by an academic article I wrote about non-consensual condom removal when I was in law school in 2016. The article outlined how survivors experienced stealthing, and the limits of American law, as it stands, to address this overlooked form of sexual violence: Existing sexual assault laws might cover non-consensual condom removal, I wrote, but a new law that explicitly forbade the practice would be better.
When I submitted that paper to an academic journal on a whim, it never occurred to me that anyone other than my professor, and maybe my mom, would read the piece. But, when the article was published in 2017, it was widely covered online. (Some publications, much to my dismay, covered the article as a study of a “new sex trend,” as though non-consensual condom removal were a fun sex position.) Eventually, the article caught the attention of some legislators, including Assemblywoman Garcia.
I’m particularly glad to see that the California bill makes non-consensual condom removal a civil, rather than criminal, offense. A brief legal primer: In a criminal prosecution, a government official brings charges against a defendant. If a jury convicts, the defendant generally goes to prison. By contrast, a civil suit is brought directly by the victim, usually through their attorney. If the survivor proves their case, the defendant won’t be incarcerated, but the court might order them to pay the survivor a significant sum. Those differences demonstrate the fundamentally different purposes of these two kinds of court proceedings. A prosecution is brought to vindicate the state’s interest in law and order; a civil suit is brought to provide remedies to the person harmed.
As I argue in my new book, Sexual Justice, civil lawsuits are often a better fit for survivors’ needs. After being “stealthed” or experiencing another kind of sexual assault, some people want to see the person who hurt them in prison. But many don’t. And for many survivors, the biggest obstacle to healing and rebuilding their lives are material needs. They want to go to therapy, or pay off their medical debt, or change jobs to avoid their abuser — but they can’t afford to do so. A civil suit can provide victims those resources in a way that criminal prosecutions can’t.
Plus, many survivors, for good reason, don’t trust police and prosecutors to treat them, or their assailant, fairly. Survivors of color may, rightfully, view the criminal legal system as a source of violence against their communities. And victims may reasonably fear that law enforcement won’t believe them because they do not conform to the stereotype of a “perfect victim”: a white, straight, cis, virginal woman assaulted by a stranger at a time when she had not been drinking, using drugs, or selling sex. (No victim of non-consensual condom removal will ever fit that bill, since they will, definitionally, have consented to sex with their assailant prior to the condom removal.) A survivor, then, might appreciate the chance to seek legal recourse through a civil suit, which doesn’t require them to report to the cops at all.
Civil suits also provide victims with control, which can be particularly meaningful in the wake of sexual violence. The vast majority of sexual assaults reported to the police never result in a prosecution, even where the evidence is strong and the survivor wants the case to move forward. That’s because prosecutors, not victims, decide whether to bring criminal charges. Those prosecutors may doubt survivors because of their own biases, or may be worried a loss will be bad for their careers. Whatever the reason, if the prosecutor says no, the criminal case is over. Prosecutors also get to decide whether to accept a plea deal, even over the survivors’ objection. In my book, I talk about one survivor who learned from a local newspaper that her rapist, charged with four counts of sexual assault, had entered into a deal to plead guilty to a single lesser charge and serve no time in prison. The prosecutors hadn’t even bothered to tell her. After all, the case wasn’t hers; it was the state’s.
With civil suits, survivors call the shots. They decide whether to file suit and whether to settle on what terms. For some victims, the ability to make their own legal decisions can help them regain a sense of control in the wake of sexual violence, which is itself a profound denial of autonomy.
And, because of the lower standard of evidence used in a civil suit as opposed to a criminal prosecution, victims are more likely to receive affirmation that they are believed. To secure a criminal conviction, a prosecutor must prove “beyond a reasonable doubt” that the defendant is guilty. For a civil suit, though, the defendant is liable so long as a jury or judge believes that it is “more likely than not” that the defendant broke the law. (This standard is often called the “preponderance of the evidence.”) For obvious reasons, then, it’s easier for a victim to convince a jury in a civil suit to say, officially, that they believe her story. That verdict can be hugely meaningful to a survivor, separate and apart from any financial award.
None of this is to say that civil statutes — like the “stealthing” law in California — are a silver bullet. Victims assaulted by people without deep pockets often struggle to find private attorneys to take up their cases, since the likelihood of a big payday is low and non-profits providing free civil legal services for survivors are chronically underfunded. And the process of going through a lawsuit can be exhausting and demoralizing. For some victims, the prospect of being cross-examined at trial — which is much the same in a civil or criminal proceeding — may seem too high a cost. I’d like to live in a world where resources and affirmation for survivors are so abundant that they don’t need to turn to the law for help.
In the meantime, though, civil laws can be an important if imperfect tool for survivors. I hope Governor Newsom recognizes that and signs the bill — and inspires other states to follow California’s lead.
Alexandra Brodsky is a civil rights attorney and the author of Sexual Justice, published last month by Henry Holt / Metropolitan Books.