California set to become first state to make it illegal to remove a condom without consent

The act of removing a condom during sex without a person's knowledge or consent — also known as "stealthing" — could soon become illegal in the state of California. A new bill introduced this week by California Assemblymember, Cristina Garcia (D) would categorize stealthing as a form of sexual battery and allow a victim to pursue a claim for emotional and physical damages under the state's civil code. If passed, experts say, AB 453 would be the first such law in any state to explicitly address nonconsensual condom removal.

"I want to make sure that A, victims have a legal course for justice and B, we have something in the books that facilities a discussion with all people, especially our youth, whether it's parents, educators, whether it's even the public safety system," Garcia told The Washington Post. "Having something in the books allows us to do the education to hopefully create a consciousness that we shouldn't do certain things." The bill would amend the state definition of sexual battery to include a person "who causes contact between a penis, from which a condom has been removed, and the intimate part of another who did not verbally consent to the condom being removed."

Speaking to the Los Angeles Times, Garcia said that while stealthing has been an existing problem, it has gone unrecognized legally due to its covert nature. "It's been going on for a while. There's blogs online that are helping individuals, teaching them how to get away with this," she said. "We need to be able to call it what it is in order to be able to deter [this] behavior." According to the assemblywoman's office, although Garcia introduced bills in 2017 and 2018 to make stealthing a crime under the state's penal code, the bills did not move forward over concerns that they would increase the prison population.

However, awareness of the issue has increased significantly over the past four years after Alexandra Brodsky, a former Yale University law student, wrote an article published in the Columbia Journal of Gender and Law with research on nonconsensual condom removal. She wrote that stealthing is "experienced by many as a grave violation of dignity and autonomy," and that while victims had concerns about risks such as sexually transmitted infections and unwanted pregnancy, they were also haunted by the emotional trauma. "Survivors spoke not only of betrayal but of their partners' wholesale dismissal of their preferences and desires," Brodsky wrote.

Speaking on the subject this week, Brodsky — now a civil rights attorney — said that there continues to be a misunderstanding about the issue. "There are people that just don't believe this is a problem," she said. Brodsky added that this is one reason why the depiction of nonconsensual condom removal in the HBO show I May Destroy You — written by Michaela Coel who addressed less recognized instances of sexual assault as assault — was particularly powerful for viewers. "Not just pop culture depictions of nonconsensual condom removal but discussion of its impact can really be powerful, both broadly in raising awareness and in giving survivors a vocabulary to express what happened to them," she said.

"Without language, without media, without depictions, I think it's easy for survivors to feel like they're the first person this has ever happened to, or that this is just part of sex. Not that this is a violation, that they have the right to decide to have sex with a condom, and that agreement was broken," Brodsky added. Garcia also referenced the HBO series in a news release introducing her bill. She said she hopes by introducing a measure that takes the civil route, more lawmakers and advocacy groups will be inclined to support it — unlike the past two times.

"In California, we like to pride ourselves [on] the idea that we are leaders in national discussions, and we start with bills — whether it’s on climate change or menstrual equity," said Garcia. "At a minimum, they allow for the discussion to continue." Known for being a leader in the #MeToo movement, Garcia faced accusations of sexual misconduct in 2018 when Daniel Fierro, a former legislative staffer, accused her of inappropriately touching him during a charity softball game four years before. An investigation by the California Assembly did not find evidence to substantiate Fierro's claim but found that she used vulgar language, in violation of the Assembly’s sexual harassment policy.

A second investigation into the accusations found that Garcia acted in an "overly familiar" manner at the softball game but that her behavior was not "sexual." Speaking of the investigation, Garcia said that she "respected the process, and at some point, we have to respect the outcome. I have always felt like I was attacked to be silenced, like so many folks are, especially women of color. And so for me, it's important that I keep doing the work that I'm passionate about. I use the soapbox for issues that I care about that other people don't want to touch."