POLITICS WEEK: Issues of Consent - "Stealthing"
By Alex Cranstoun
Stealthing is the deliberate removal of a condom without a partner’s consent or knowledge during sexual intercourse. Although the practice is not a new concept, it has recently been brought into notoriety by a Swiss criminal case and a study by Yale Law School graduate, Alexandra Brodsky. These two reports have caused various jurisdictions to question the status of stealthing within their legal system, especially in relation to issues of consent.In New Zealand, a stealthing complaint would fall under the Crimes Act 1961. It is not a crime to have sexual activity without the use of a condom. A crime occurs when sexual activity takes place in the absence of consent. The consent issue raised in the circumstances of stealthing is whether it induces the complainant into a mistake about the nature and quality of the act? If it does, then consent is negated and the ‘stealther’ is exposed to a possible charge of sexual violation carrying a maximum sentence of 20 years imprisonment.The Swiss case previously referred to was tried in January at the Criminal Court of Lausanne. A Frenchman was convicted of rape, after removing a condom during a sexual encounter, where his partner had explicitly declined unprotected intercourse. The Court held the agreement between the pair was to use a condom, and this was deliberately not complied with, equating to sexual assault or rape under Swiss law.At trial the complainant’s lawyer presented a research study conducted at the National Women’s Law Center, at Yale Law School. The study interviewed victims of stealthing about their experiences and examined possible legal responses or remedies, including but not limited to criminal charges. Identified was a disturbing online presence not only encouraging stealthing, by providing advice on effective techniques to ‘stealth’ a partner, but promoted rhetoric claiming it was a mans right to have unprotected sexual intercourse regardless of what a female (or male) partner wanted or consented. This study appeared not only pivotal to the outcome of the Swiss case, but sparked a global discussion on consent to sexual activity.Brodsky proposes two arguments for why stealthing is a consent violation. Firstly, consent is granted to touch by a condom, not by the skin of the penis (literal approach). This approach addresses the changing nature of the act. For example, if consent is granted to oral sex, it does not follow that consent has also been granted to penetrative sex.The second argument is that by removing the condom a new act is created, due to the increased risk from potential infection or pregnancy involved in the sexual contact. This new act requires a new consent (risk approach). For example, consent was granted to sexual intercourse with a condom, to which the participant knew the associated risks relating to efficacy and has decided to proceed. With the condom removed, the associated risks have changed and participant has not had the opportunity to weigh a ‘risk analysis’. Consent is now required on whether they wish to proceed with the act, based on the new analysis.These two arguments are not without criticism as Brodsky acknowledges. The literal approach raises the question, what is the limit to an act to which consent has been granted? Or put more bluntly, when does yes mean yes? The contrast provided by the study, is if a person consents to their left breast being touched, does consent need to be obtained to touch the right? Purely from a literal approach, touching either the left or right breast is the act of touching a breast, as penetration with or without a condom is still penetration.The objection lies with the risk involved between the acts. In touching either breast, the risk of a ‘bad / unexpected’ outcome is equally low. Compared to penetration with or without the use of a condom, where there is a significantly higher risk between the acts of a ‘bad / unexpected’ outcome. The outcomes of special concern are infection with a sexually transmitted disease and/or pregnancy.The criticism with the risk approach is centred on disclosure. If consent is directly related to risk of outcome, then where is the line drawn concerning what needs to be disclosed? If the outcome of concern is infection with a sexually transmitted disease, does failure to disclose an infection regardless of condom usage negate consent? If the outcome of concern is pregnancy, does fertility status or hereditary disorders have to be disclosed?It is important to note the only case where the issue of non-consensual condom removal (stealthing) has been tested directly is in Switzerland. Any comments regarding the outcome of charges in any other jurisdiction is purely theoretical or speculative. There have been cases with similar or novel issues involving consent, which can provide guidance for other jurisdictions.The foundation case in both the United Kingdom and New Zealand on consent via deception is R v Clarence. Mr Clarence, knowingly infected with gonorrhoea had sexual intercourse with his wife and transmitted the disease to her. Mrs Clarence claimed that she would not have consented to the sexual activity if she had known of the infection. The Court held that Mrs Clarence had not been misled about the sexual activity, only the risk of contracting gonorrhoea. As a result her consent to sexual intercourse was valid.Clarence has since been overruled by R v Dica a case with similar circumstances, dealing with the transmission of HIV. The Court held the following in regard to consent:
 Risks have always been taken by adults consenting to sexual intercourse. The problems of criminalising the consensual taking of such risks include the sheer impracticability of enforcement and the haphazard nature of its impact. The process would undermine the general understanding of the community that sexual relationships are pre-eminently private and essentially personal to the individuals involved in them.
These two cases illustrate an initial reluctance, by courts in the United Kingdom to negate consent based on the risk approach. The more recent cases of, Assange v Swedish Prosecution Authority and R (on the Application of F) v The Director of Public Prosecutions regarding judicial review of legal issues that involve a sexual element have discussed consent to sexual activity with a differing opinion.On the Application of F is a case where the complainant had consented to sexual intercourse on the basis that her partner would not ejaculate inside her. When this condition was violated, a complaint was made to the Police, but the Department of Public Prosecutions declined to prosecute. This had been one of many incidents of sexual violation between the two. The complainant sought a judicial review of the decision not to prosecute. The Court commented that:
 She was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly her consent was negated … in law, this combination of circumstances falls within the statutory definition of rape.
This case highlights a key issue with consent in cases of stealthing. The complainant has been deprived of autonomy in relation to their body and the risk they wish to be exposed. Assange involved the infamous Wikileaks founder and the attempt by the Swedish government to extradite him from England to face charges relating to a number of offences including rape. The Court did not have to reach a decision on the rape charge, but stated the following relating to condom use and consent:
 It was accepted that it could be argued that sexual intercourse without a condom was different to sexual intercourse with a condom, given the presence of a physical barrier, a perceived difference in the threat in the degree of intimacy, the risks of disease and the prevention of a pregnancy.
The Court continued:
 His conduct in having sexual intercourse without a condom in circumstances where she had made clear she would only have sexual intercourse if he used a condom would therefore amount to an offence under the Sexual Offences Act 2003, whatever the position may have been prior to that Act.
These conclusions by the Court support the risk approach negating consent. If these conclusions were applied in a stealthing case that came before the Court in the United Kingdom it would suggest a rape conviction highly probable.In the United States, the state legislatures of Wisconsin and California have introduced bills explicitly making non-consensual condom removal (stealthing) a criminal offence. This is possibly in response to Brodsky’s examination of the New York State Penal Code. Brodsky concluded that if a stealthing case came before the court in New York, the only possible criminal charges would be, third degree rape or misdemeanour sexual abuse or sexual misconduct. This was due to non-consent in felony rape charges requiring either, ‘being physically helpless’ or ‘a mental disability / incapacity’. A misdemeanour charge could be a disappointing outcome when weighed against the violation expressed by stealthing vicitms.New Zealand could look to the treatment of consent in cases of exposure to HIV via sexual contact for possible guidance. The most recent of significance, KSB v Accident Compensation Corporation held that a positive HIV status must be disclosed to a partner before unprotected sexual activity, for consent to be valid. However, KSB was a civil case and declined to comment on the standard would be for consent in a criminal setting. This ruling indicates a possibility for a cause of action in tort for stealthing complainants.The issue of consent in circumstances of stealthing is a legal grey area due to its untested nature. Based on the test case directly involving stealthing, comments in judgments from persuasive jurisdictions and legislative initiatives to solidify its criminal status, stealthing negates consent. Therefore, stealthing is sexual violation.Sexual activity has always been a taboo topic of discussion in the ‘western’ world. Researchers such as Alexandra Brodsky should be commended for igniting debate over limits or possible failures of the legal system, so that necessary changes can be made.
If you are a survivor of stealthing or any other form of non-consensual sexual activity, listed below are a few places that can be contacted for help.If it is an emergency and you feel like you or someone else is at risk, call 111.Auckland sexual abuse HELP foundation - (09) 623 1700 – 24 HourRainbow Youth: (09) 376 4155OUTline: 0800 688 5463Counselling Services Centre - 09 277 9324 – 24 hour crisis lineTu Wahine Trust: 09 838 8700Man Alive: 0800 826 367Shakti New Zealand: 0800 SHAKTI – 24 hour crisis line
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 Alexandra Brodsky ‘”Rape-adjacent”: Imagining legal responses to nonconsensual condom removal’ (2017) 32 Colum J Gender & L 183 at 183. Brodsky, above n 1 at 183; Michael Shields ‘Swiss court upholds sentence in ‘stealthing’ condom case’ Reuters (online ed, London, 9 May 2017) at 1. Charges of criminal nuisance, grievous bodily harm, breach of contract, the tort of battery and defilement have been considered. Crimes Act 1961, s128A(7). Sections 128 and 128B. Sexual violation is only one of multiple charges a stealther could face. Other possible charges are criminal nuisance (s145(1)), infecting with a disease (s201), assault (ss196, 189) (not an exhaustive list). “Condamnation pour viol en raison d’un preservative enleve pendant un rapport” (10 January 2017) Radio Television Suisse <www.rts.ch/info/suisse/8296721-condamnation-pour-viol-en-raison-d-un-preservatif-enleve-pendant-un-rapport.html> Above n 6. Shields, above n 2 at 1. Brodsky, above n1 at 189. Shields, above n 2 at 1; Above n 6 at 1. Brodsky, above n 1 at 190. Brodsky, above n 1 at 190. Brodsky, above n 1 at 185. Brodsky, above n 1 at 191- 195. Brodsky, above n 1 at 191. To list a few cases; United Kingdom: Assange v Swedish Prosecution Authority  EWHC 2849 (Admin); R (on the Application of F) v The Director of Public Prosecutions  EWHC 945 (Admin); R v Dica  2 Cr App R 28,  QB 1257 (CA); R v Clarence (1889) 22 QB 23 (Court of Crown Cases Reserved); Canada: R v Cuerrier  2 SCR 371 (SCC); New Zealand: KSB v Accident Compensation Corporation  NZCA 82; R v Mwai  3 NZLR 149 (CA); CLM v Accident Compensation Corporation  3 NZLR 127 (HC). R v Clarence (1889) 22 QB 23 (Court of Crown Cases Reserved). R v Clarence, above n16 at . R v Dica  2 Cr App R 28,  QB 1257 (CA). R v Dica, above n 18 at . Assange v Swedish Prosecution Authority  EWHC 2849 (Admin); R (on the Application of F) v The Director of Public Prosecutions  EWHC 945 (Admin). R (on the Application of F) v The Director of Public Prosecutions, above n 20 at . Assange v Swedish Prosecution Authority, above n 20 at . R (on the Application of F) v The Director of Public Prosecutions, above n 20 at . Assange v Swedish Prosecution Authority, above n 20 at . California State Legislature, AB-1033 Sexual Battery: Condoms (2017–18 regular session); and Wisconsin State Legislature, LRB-3346/1 (2017–18 legislature). Brodsky, above n 1 at 197. N.Y. Penal Code §§ 130.30, 130.35; Brodsky, above n 1 at 196. See Alexandra Brodsky ‘”Rape-adjacent”: Imagining legal responses to nonconsensual condom removal’ (2017) 32 Colum J Gender & L 183 at 183 -187. KSB v Accident Compensation Corporation  NZCA 82 at . KSB v Accident Compensation Corporation, above n 28 at .