California first state to ban non-consensual condom removal; now considered sexual battery

Removing a condom during intercourse without consent is now illegal in California, making the state the first in the nation to create legislation against the act. SAM ANDRUS, Photo Editor.

Trigger warning: sexual assault, rape

Chapman’s campus saw eight cases of rape and 15 instances of fondling from 2018 to 2020, according to the university’s 2021 Annual Security and Fire Safety Report. Most recently, an attempted sexual assault Sept. 23 rattled the campus community after a freshman student was attacked just outside their dorm.

Chapman's definition of sexual assault includes “stealthing,” the act of removing a condom during intercourse without consent. However, the state of California did not recognize the act as illegal until this year.

Gov. Gavin Newsom signed a bill into law Oct. 7  that pronounced stealthing as illegal, making California the first and only state to formally define stealthing as sexual battery under civil law.

DeAnn Yocum Gaffney, Chapman’s lead Title IX coordinator, said stealthing was already discouraged by the university, as the act is a violation of Chapman’s affirmative consent policy. However, the legislation’s passing allows students the option to take legal action outside of a university setting.

“According to our policy, you have to have consent for each and every action that occurs while individuals are engaged in sex,” Yocum Gaffney said. “Surreptitiously removing a condom and continuing with sex would violate that definition of consent and therefore would be violation of our policy.”

The governor’s office explained how the bill stands for the importance of consent and how it would allow victims of stealthing to be able to take civil action against their perpetrators.

“If the person pushes the envelope and pulls off the condom without the person knowing … that’s a violation of a person's most intimate space, which is their body,” said on-campus rape crisis counselor Dani Smith, who works as the coordinator for Creating a Rape-free Environment for Students (CARES).

However, the law will not allow victims of stealthing to take any criminal action against the perpetrators. Civil action will only allow the survivors to sue for monetary compensation.

Smith emphasized that California’s bill is a step in the right direction, but the action did not go far enough for the victims.

“For me, (stealthing) is a crime,” Smith said. “That’s where I have a problem. For me, this should be a criminal law, but I’m not an attorney.”

The stealthing bill was sponsored by Assemblymember Cristina Garcia. In 2017, and again in 2018, Garcia introduced similar bills that would have made stealthing a criminal offense, allowing prosecutors to seek jail time for perpetrators. Both these bills either died on the floor or did not get a hearing.

“I have been working on the issue of ‘stealthing’ since 2017, and I am elated that there is now some accountability for those who perpetrate the act,” Garcia said in an Oct. 7 statement. “Sexual assaults, especially those on women of color, are perpetually swept under the rug.”

The term “stealthing” gained popularity in 2017 after attorney Alexandra Brodsky produced a Yale University study discussing the issue. Since then, Garcia has been working on different versions of the legislation.

A 2019 paper published in the National Library of Medicine found that 12% of women aged 21 to 30 reported experiences with stealthing. That same year, researchers with Monash University in Australia, found that one in three women and one in five men had been subjected to the practice by a male partner during sex.

Another 2019 study found that almost 10% of men reported removing a condom during sex without consent.

“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,” Garcia said in a statement. “It is now clear in California law that this is a crime. This law is the first of its kind in the nation, but I urge other states to follow California's direction and make it clear that stealthing is not just immoral, but illegal.”

Smith emphasized that stealthing is not a new issue, and removing a condom without a partner's knowledge exposes them to serious health and personal risks without their consent. The action not only violates a person’s body and boundaries but also puts them at risk of contracting a sexually transmitted infection or possibly pregnancy, Smith said.

“When you’re being intimate with someone, make sure you have both discussed what you want to do and what you don't want to do, and then you need to honor that with each other,” Smith said. “That, to me, is the most important thing; it’s about respecting the agreement and respecting the other person.”

For help and more information, call Chapman University’s Sexual Assault Information Line: (714) 744-7000