A recently released study about a phenomenon in which men intentionally remove a condom during anal or vaginal sex without permission from their partner — which has become known as “stealthing” — has raised legal questions about whether the practice is a form of sexual assault.
HIV prevention experts affiliated with D.C.’s Whitman-Walker Health and the health clinic at the Los Angeles LGBT Center have also expressed alarm that nonconsensual condom removal poses a risk for the transmission of HIV and other sexually transmitted infections for gay men.
“Interviews with people who have experienced condom removal and online accounts from victims indicate that nonconsensual condom removal is a common practice among young, sexually active people,” wrote Alexandra Brodsky in a study on stealthing published April 20 in the Columbia Journal of Gender and Law.
“Both men and women describe having sex with male partners with penises who, during sex, removed the condom without their knowledge,” Brodsky states in a 26-page paper outlining the findings of her study.
“Apart from the fear of specific bad outcomes like pregnancy and sexually transmitted infections, all of the survivors experienced the condom removal as a disempowering, demeaning violation of a sexual agreement” and a violation of “the trust they had mistakenly placed in their sexual partner,” Brodsky states in the paper.
The paper states that all of those who experienced stealthing who were interviewed for the paper were women. But the paper says Brodsky obtained information about men whose male partners removed condoms without their consent through online sites catering to men who have sex with men.
One of the online sites, reddit.com/ASKGAYBROS, includes postings by gay men who describe how a male sex partner attempted and sometimes succeeded in removing his condom against their wishes.
“Always check that your partner has it on,” one man posted on the site last year. “Don’t ask if he still has it on, because if he’s intent on stealthing you he will answer ‘yes.’ Look for yourself to see it’s still on and not broken.”
Dr. David Hardy, Senior Director of Evidence Based Practices at Whitman-Walker Health, said between five to eight mostly gay men – and sometimes as many as 15 – come to Whitman-Walker’s medical center each month for medical advice and treatment after learning their partner did not use a condom or may have removed the condom against their wishes.
“It’s hard to know whether anyone comes in and says that their partner who they are having an intimate act with purposefully removed the condom,” Hardy said. “I don’t know how often we actually hear that,” he said. “But we certainly do hear that a condom was there to begin with, I thought I was having protective sex in an anal sex act and I realized I wasn’t.”
Added Hardy: “And if a stealthing episode occurred somewhere in the middle of that then it did when the insertive partner purposefully removed it. So this is something that may be occurring much more often than we think but it just isn’t actually called stealthing or the stealthing partner isn’t being called out on it.”
Hardy said another factor might be linked to stealthing among men. He said some men who are HIV positive and whose viral load is measured as being undetectable due to successful drug therapy may incorrectly believe that they can no longer infect another person.
Although studies have shown that such an assumption is likely correct if an HIV-positive person strictly adheres to his medication, the virus could reactivate and the person could become infective if he misses doses of his medication for as little as a week or two.
“So that is something I think is potentially starting to erode the use of condoms and why post-exposure prophylaxis is becoming more common,” Hardy said.
According to Jim Key, chief marketing officer at the L.A. LGBT Center, anecdotal reports show that an average of four to five people come to the L.A. Center’s health clinic each week after a sex partner reportedly removed his condom “without consent during intercourse.”
Similar to Whitman-Walker in D.C., Key said the L.A. Center’s clinic encourages these patients to immediately get on a drug regimen known as post-exposure prophylaxis or PEP. Like Whitman-Walker, the L.A. Center provides that drug regimen for them.
HIV experts point out that the PEP regimen must begin within 72 hours of the time of possible exposure through sex for it to be effective. The PEP drug, usually a one-pill-per-day HIV medication, must be taken for 28 days.
“But of course, that doesn’t protect them from sexually transmitted diseases other than HIV,” Key said in a statement to the Blade.
“People rarely seek legal action,” he said. “Most of the cases are with someone they met through an app or anonymously, but we recently had at least one patient who wanted to press legal charges. He felt hopeless, however, because he didn’t know how to contact the partner,” Key said
“We’re happy Alexandra Brodsky’s article is bringing attention to this issue,” he said.
In her paper, Brodsky says she could not find any case in the U.S. where someone victimized by stealthing filed a lawsuit or where the alleged perpetrator was charged with a crime. She says possible criminal tort, contract, and civil rights remedies might be available to stealthing victims under current federal and state laws.
Theoretically, a stealthing episode might be considered a form of rape, she said, because it removes the consent that the partner gave for sex based on the condition that a condom would be used.
“Ultimately, a new tort for ‘stealthing’ is necessary both to provide victims with a more viable cause of action and to reflect better the harms wrought by nonconsensual condom removal,” she sates in the paper.
A “tort” is defined by legal experts as a civil wrong that unfairly causes someone to suffer loss or harm that could lead to legal liability for the person found to be responsible for the wrong.
Brodsky reports in her paper that some online forums “provide advice, along with explicit descriptions, for how to successfully trick a partner and remove a condom during sex.”
Those who promote the practice of nonconsensual condom removal base their actions “in misogyny and investment in male sexual supremacy,” she states in the paper.
“Men who stealth assault other men display similar rhetoric focused on a man’s ‘right’ to spread his seed – even when reproduction is not an option,” Brodsky says in her paper.
Ged Kenslea, a spokesperson for the L.A. based AIDS Healthcare Foundation, the nation’s largest private HIV/AIDS medical services provider, said he was not aware of reports of patients seeking treatment at AHF clinics for stealthing related incidents. But he said AHA considers stealthing a form of sexual assault.
“This is a matter of consent, and any altering of the terms of consent, without the knowledge of a partner, should be classified as such,” Kenslea told the Blade in an email. “AHF will always speak out on issues regarding women’s rights, people’s rights, public health, and entering into sexual situations with all of your rights and agency intact.”
Lou Chibbaro Jr. has reported on the LGBT civil rights movement and the LGBT community for more than 30 years, beginning as a freelance writer and later as a staff reporter and currently as Senior News Reporter for the Washington Blade. He has chronicled LGBT-related developments as they have touched on a wide range of social, religious, and governmental institutions, including the White House, Congress, the U.S. Supreme Court, the military, local and national law enforcement agencies and the Catholic Church. Chibbaro has reported on LGBT issues and LGBT participation in local and national elections since 1976. He has covered the AIDS epidemic since it first surfaced in the early 1980s.
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