'Stealthing' could soon be outlawed in California thanks to a Yale law student's term paper

The California State Legislature last week approved a measure that would make the state the first to outlaw "stealthing," the nonconsensual removal of a condom during sex. If passed, the bill would amend the state's civil definition of sexual battery and make stealthing a civil offense. The bill's sponsor, Cristina Garcia—a member of the California State Assembly—told reporters that she's been working to pass legislation criminalizing stealthing ever since reading a Yale law student's 2017 term paper on the subject. Alexandra Brodsky's paper on why this sexually abusive practice is a "rape-adjacent" behavior that should provide victims with legal recourse garnered national attention and is often cited in anti-stealthing legislative efforts.

"I wrote the paper in my third year of law school and never dreamed it would actually influence law in any kind of way," Brodsky, who is now a civil rights lawyer, told BuzzFeed News. The 31-year-old's study argued that stealthing transformed consensual sex into nonconsensual sex and was, therefore, a "grave violation of dignity and autonomy." While people of all genders can be victims of this rarely-addressed practice, Brodsky's paper cited the experiences of several women who'd gone through it. "I agreed to f**k him with a condom, not without it," one woman, whose boyfriend stealthed her when she was a first-year student in college, told Brodsky.

The woman, who described it as a "consent violation," revealed that she had heard about similar experiences from many undergraduate students through her work at a rape crisis hotline. Their accounts often started in the same way, she said. "I'm not sure this is rape, but..," they'd tell her. In an interview with Brodsky, another woman—a political staffer in New York—revealed that the man she was hooking up with had dismissed her insistence that he wear a condom and removed it halfway during sex. When she called him out on it and told him that what he had done was "really messed up," she recalled him replying, "Don't worry about it, trust me."

"That stuck with me because [he’d] literally proven [himself] to be unworthy of [my] trust," the woman told Brodsky. "It was such a blatant violation of what we’d agreed to. I set a boundary. I was very explicit." In her paper, Brodsky wrote that victims described stealthing as a "violation of trust and a denial of autonomy, not dissimilar to rape" and feared unwanted pregnancies and sexually transmitted infections. Despite how widespread the practice was and how groups of perpetrators encouraged it online, Brodsly noted, the existing law at the time was largely silent on naming and recognizing this form of sexual abuse.

Although Garcia's earlier efforts to criminalize stealthing fell through, she said she's glad the new bill would include it in the civil code. "I have been working on the issue of 'stealthing' since 2017. And I won't stop until there is some accountability for those who perpetrate the act. Sexual assaults, especially those on women of color, are perpetually swept under the rug. So much stigma is attached to this issue, that even after every critic lauded Michaela Coel's, 'I May Destroy' for its compelling depiction of the horrors of sexual abuse including of 'stealthing,' it got zero Golden Globe nominations. That doesn't seem like an accident or coincidence to me," the Assemblymember said in a statement.

"It's disgusting that there are online communities that defend and encourage stealthing and give advice on how to get away with removing the condom without the consent of their partner, but there is nothing in law that makes it clear that this is a crime. This would be a first of its kind in the Nation, and I that urge Governor Newsom to sign AB 453 to make it clear that stealthing is not just immoral but illegal," she added. The bill—which was approved unanimously—awaits the signature of Gov. Gavin Newsom, who has until October 10 to sign it into law. Similar bills have been introduced in New York and Wisconsin but have not yet passed. California Rep. Ro Khanna and New York Rep. Carolyn Maloney have also been pushing for federal action on classifying stealthing as rape.

"I am glad the California legislature has unanimously approved an anti-stealthing bill and I look forward to seeing it signed into law," Khanna said in a statement. "Nonconsensual condom removal is sexual violence and should be treated as such." Meanwhile, Maloney said that although California's bill would be a "major step forward" in "supporting survivors of nonconsensual condom removal," Congress should "step up" and not wait for individual states to take action.

Brodsky said she's glad the bill was consistent with her paper's recommendation of creating a civil remedy rather than criminalizing stealthing. "Civil remedies are really valuable to survivors because civil lawsuits can provide the financial support that so many victims need in the wake of violence," she said, adding that many sexual assault survivors do not want to see the person who harmed them in prison but do want material support. Another advantage, she said, was that civil lawsuits require a lower standard of evidence than criminal prosecutions, making it easier for survivors to convince a jury or judge of what happened to them. "That can be hugely affirming ... to know that members of your community believe you," she said.