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California could ban nonconsensual condom removal. Why isn't this already illegal?

The conversation around sexual consent has evolved at a maddeningly glacial pace. Only in recent years has the notion that consent is more than the absence of a “no,” and should, in fact, be enthusiastic and ongoing, gained widespread acceptance. Now, California is addressing a matter of consent that should be even more of a no-brainer: stealthing, the despicable practice of removing a condom during sex without consent. Last week, lawmakers approved a measure that could make California the first state to deem stealthing illegal, the New York Times reported. When will the rest of us finally ban it?

Per the Times, Governor Gavin Newsom faces an October 10 deadline to sign the bill — approved unanimously last Tuesday — into law. If passed, it would make stealthing a civil offense. As a result, it would enable victims to sue in civil court, The Guardian explained, but wouldn’t carry the possibility of prison time for perpetrators.

But some experts believe this route would actually be more reparative to victims than seeing perpetrators behind bars. “In my experience, many survivors find the kinds of outcomes available in civil litigation – including money damages – more meaningful and useful,” feminist civil rights attorney Alexandra Brodsky told The Guardian.

Brodksy also pointed out to the Times that it may be easier for victims to prove wrongdoing in civil suits, which have a lower standard of evidence. Plus, if the suit is successful, any earnings could go toward therapy or medical debt, she added. What’s important is that the measure would define stealthing as illegal, which, as Brodsky noted, would lay to rest any doubts about whether those who engage in it are really at fault. Again, consent is supposed to be ongoing. Sure, stealthing often starts out as consensual sex, according the Times — but once a condom is removed in secret, that consent is gone.

The gay community has historically used “stealthing” to describe HIV-positive men who try to surreptitiously infect someone during sex, Mother Jones explained. A study about the practice of slipping off condoms during sex without consent that Brodksy published in 2017 brought mainstream attention to stealthing, which is actually pretty common. In studies conducted in the U.S. and Australia in 2019, 12% to 32% of the women examined had been stealthed, Mother Jones said, as well as 10% to 19% of men.

Honestly, it’s appalling that something as abhorrent as stealthing isn’t already illegal. It forces the risk of everything that comes with an unintended pregnancy, along with the other medical consequences, onto victims, The Guardian reported. Victims also report that stealthing left them feeling hurt and degraded — their desires, safety, and bodily autonomy callously cast aside by the very partners they trusted.

Assemblywoman Cristina Garcia, who sponsored the California bill, tried to pass a bill in 2017 that would’ve made stealthing a criminal offense that could land perpetrators behind bars, per the Times. That effort fell through, though. Stealthing bills have also been introduced in Wisconsin and New York, but they didn’t pass, either.

On the other hand, stealthing is a criminal offense in Canada, New Zealand, Germany, and a few other countries, according to Mother Jones. In the U.S. — a country that often prides itself on being a safe place for women — it’s inexcusable that this form of sexual violence is allowed to continue with zero accountability.