By Manasa Ram Raj
The Indian Penal Code lays down specific grounds for rape under Section 375. However, the law is challenged to recognise different forms of rape that do not fall under the scope of the restrictive definitions provided by the letter of the law. One such form is the act of stealthingor the non-consensual removal of the condom during consensual intercourse.
Stealthing refers to the act of tampering with or removal of the condom mid-intercourse without the consent or knowledge of the partner. According to a 2017 study called Rape-Adjacent by Yale law graduate in the Columbia Journal of Gender and Law, men often remove their condoms for “increased sexual pleasure” or to “ascertain masculinity”. This easily flips the switch and changes the scenario from one of consensual sex to non-consensual sex, thus amounting to rape.
Stealthing is also a public-health hazard as it induces unwanted pregnancy or/and Sexually Transmitted Infections (STIs/STDs). Narratives from women who have faced stealthing indicate that men often do not see it as a cause of concern or wrongdoing, although when they do impregnate the women, or pass on an STD, they seldom take responsibility or provide timely support.
Stealthing under Section 375 of IPC
The explanation to Section 375 of IPC states that “A woman’s consent to sexual intercourse includes unequivocal voluntary agreement or willingness to participate in the specific sexual act by words, gestures or any form of verbal or non-verbal communication.”
When a man promises to wear a condom during sexual intercourse and obtains the consent of the women to engage in intercourse by virtue of that promise, and then removes it mid-way without obtaining the consent of the partner, he effectively disregards her consent and violates her right to say no.
This action, by interpreting Section 375, can be understood as amounting to rape.
Thus, it is clear that if a woman consents to sexual intercourse by contact with the condom and not the penis itself, then the removal of the condom without her consent and knowledge automatically implies that that sex does not have her consent.
The consent to penetration does not include all forms of penetration and this justifies why stealthing amounts to rape.
While there is no explicit provision dealing with stealthing under the current legal framework, interpretation can help. On the other hand, that this act of non-consensual removal of a condom strikes at takes away the personal agency and dignity of the person by posing a threat to their bodily autonomy, can be seen as directly striking at Article 21 of the Indian Constitution. Article 21 guarantees the Right to Life with dignity and bodily autonomy and is compromised as the man removes his condom without consulting with his partner during intercourse.
Stealthing under other legal frameworks
The term “stealthing” was coined in 2014 by LGTBQ+ communities in the United States of America where gay men “gifted” HIV to their partners who were HIV Negative, without their knowledge. Various online platforms and forums continue to encourage such approaches and conduct. Countries around the world have made their own interpretations of rape and sexual assault laws to include stealthing within the scope of their laws.
The United States does not recognise stealthing within the scope of its rape and sexual assault law. There have not been any cases before the judiciary on stealthing either. In 2014, the Supreme Court of Canada ruled that stealthing amounts to rape in a landmark decision, in R v. Hutchinson. The Supreme Court found a man guilty of rape for poking holes in the condom without his partner’s knowledge or consent. It held that stealthing can take the form of tampering or tearing the condom without the knowledge of the partner in addition to non-consensual removal.
In 2017, broadening the scope of consensual sex, a criminal court in Switzerland found a man guilty of rape on grounds of non-consensual removal of the condom. The victim here argued that she would have never engaged in sexual intercourse with the man if he had not promised to wear a condom. Therefore, the court held him guilty of rape as the man went against his promise to receive sex. Later the same year, a higher court of Switzerland upholding the conviction of the lower court changed the conviction charges from rape to defilement.
Similarly, in 2018, Germany had its first case of stealthing prosecuted. A landmark decision passed by the local Berlin court convicted a police officer of sexual assault for stealthing. He was charged for non-consensual removal of the condom. However, the Court held him guilty of sexual assault and not rape. It was held that while the larger act of sex itself was consensual, the act of removal of condom was not and hence it does not amount to rape, instead, it is an act of sexual assault.
All these above cases have been first of its kind in each State. In those countries that rely on the essence of consent to prove rape and sexual assault, stealthing can be read within the language of its given law. Unfortunately, certain legal complications arise while deciding the case in a court of law as the judges have no precedents to rely on and the legal framework does not clearly explain the concept of stealthing within its ambit. Therefore, it becomes the duty of the judges to interpret the law to support the victim and punish the perpetrator.
Image Source: Shutterstock
Why Stealthing Amounts to Rape. The News Minute. Link.
Klein, Hugh. “Generationing, stealthing, and gift-giving: the intentional transmission of HIV by HIV-positive men to their HIV-negative sex partners.” Health psychology research 2.3 (2014). Link.
Brodsky, Alexandra. “Rape-adjacent: Imagining legal responses to nonconsensual condom removal.” Colum. J. Gender & L. 32 (2016): 183. Link.
A police officer found guilty of condom ‘stealthing’ in a landmark trial. CNN. Link.
Swiss court upholds sentences in ‘stealthing’ condom case. Reuters. Link.
Man convicted of rape for taking off the condom during sex. Independent. Link.
R v. Hutchinson. Link.
“That’s not what was originally agreed to”: Perceptions, outcomes, and legal contextualization of non-consensual condom removal in a Canadian sample. Link.