— Jessie Opoien (@jessieopie) May 15, 2017
A Wisconsin state lawmaker has proposed legislation that would make “stealthing” — removing a condom during sexual intercourse without permission — an act equivalent to sexual assault.
If passed, the bill introduced by Democratic Rep. Melissa Sargent, would change the definition of consent under Wisconsin law.
Sex cannot be categorized as consensual, according to the bill, if during intercourse one partner removes a “sexually protective device” without notifying the other partner. And if the intercourse is nonconsensual, then it would by law be sexual assault.
“This is clearly a sexual crime,” Sargent told the Capitol Times. “There are victims and predators.”
Sargent, whose district includes part of Madison, the state capital and home to the University of Wisconsin, has pitched the bill as a way to crack down on what she called “predatory and disturbing” behavior. It’s part of a nationwide movement, particularly on college campuses, to enhance the punishments for sexual assault and make it easier for alleged victims to come forward.
“Sexual predators will continue to find new, egregious ways to violate and victimize others, and it’s important that as legislators we take concerted steps to be responsive as we become aware of it,” Sargent said in a news release announcing the bill. “This behavior is predatory and disturbing, and people should know we not only find it reprehensible, but that we won’t tolerate it. Ignoring it is simply not an option.”
What’s unclear, though, is if Sargent’s bill is a solution to a problem or a solution in search of a problem.
Local law enforcement, including the Madison Police Department and the University of Wisconsin Police Department, told NBC News that they have never received a report of “stealthing.”
“‘Stealthing’ is a not a term we’re familiar with, so thanks for the explanation,” campus police spokesman Marc Lovicott wrote NBC News in an email. “We have not investigated a case like that before.”
To that point, Sargent tweeted: “The issue isn’t whether or not ‘stealthing’ is happening, it’s whether or not we’re going to do something about it.”
Secretly removing a condom during sex isn’t new. But it gained increased attention last month when Yale Law School graduate Alexandra Brodsky published an article on “stealthing” in the Columbia Journal of Gender and Law.
Brodsky didn’t coin the word “stealthing” — men who promote the act apparently did, according to a website Brodsky found that teaches people how to do it.
“Stealthing is controversial, but it’s also a reality,” Brodsky quotes the man who runs the website as saying. “If you want to do it, you need to know how.”
Her article, “Rape-Adjacent:” Imagining Legal Responses to Nonconsensual Condom Removal, relies on extensive interviews with five women who said they were victims of “stealthing” and feared being exposed to sexually transmitted infections or unwanted pregnancy. Brodsky called the act a “grave violation of dignity and autonomy” and explored possible legal remedies currently available to victims.
During her research, Brodsky could find no record of a U.S. court considering a condom removal case, reported the Chicago Tribune. She told that publication that after the article published at least one person said they planned to take her research to a lawyer and seek legal action against the alleged wrongdoer.
“I’ve heard from a number of people who said, ‘I felt terribly betrayed, but I didn’t know what to call it, so I didn’t know I was right to be angry, right to be hurt,'” Brodsky told the Tribune.
In a different interview with the National Post, Brodsky explained why she was reluctant to take a definitive stance in her paper on whether “stealthing” should be considered rape.
“I’m very open to the idea that (condom removal) should be considered rape, plain and simple, and I’ve heard some people who feel that to portray it in any other way trivializes the harm and overcomplicates it,” she said. “But I want to be respectful of people who didn’t experience it that way — I don’t want to go around telling people they were raped, when they don’t feel they were raped.”
Brodsky’s article was circulated widely online and spurred numerous news reports on her findings, including analyses from other scholars, such as Cornell law professor Sherry Colb, who argued on the law blog Justia that “stealthing” should not be categorized as sexual assault.
“A lack of consent is different from a lack of informed consent,” Colb wrote, acknowledging that even if “stealthing” isn’t by law a sex crime, it indeed creates harm that warrants recourse.
“Whether or not we consider it to be a kind of sexual assault (and I do not), stealthing subjects people to health and pregnancy risks that the people at issue never agreed in any way to accept,” Colb wrote. “The lack of informed consent does render the conduct at issue a harm, even if the harm is not comparable to a sexual battery.”
It appears Sargent’s bill in Wisconsin is one of the first to address the legal issues raised in Brodsky’s article, but the legislation does not clearly define what the punishment for “stealthing” would be.
Sargent told NBC News that since introducing the legislation earlier this month, people from Madison and the university have shared stories with her about their experiences with stealthing.
Though Brodsky’s article focused on nonconsensual condom removal, Sargent’s bill defines “sexually protective device” as a “male or female condom, spermicide, diaphragm, cervical cap, contraceptive sponge, dental dam, or any other physical device intended to prevent pregnancy or sexually transmitted infection.”
The deadline for other lawmakers to co-sponsor her bill is May 19. Victim’s advocate groups in Wisconsin haven’t taken a stance on the bill yet because analysis of “stealthing” and its legal repercussions are still evolving, reported the Capitol Times earlier this week.
“We understand that this issue is receiving a fair amount of attention in our field,” Dominic Holt, spokesman for the Wisconsin Coalition Against Sexual Assault, told the Capitol Times reporter Jessie Opoien. “We haven’t yet seen a consensus about how to address it.”
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