Transcript | Ep. 140: “Stealthing”

[CLIP - ABC News]

Anchor: California just became the first state to outlaw stealthing, or the removal of a condom without consent during sex. The law signed by Governor Newsom yesterday makes it illegal for someone to remove a condom without their partner’s verbal consent. The offense is now added to the state’s civil definition of sexual battery, meaning victims can sue their perpetrators. Lawmakers say women and gay men are increasingly victims of stealthing.

[theme music]

Caroline: Hey y’all, and welcome to Unladylike. I’m Caroline.

Cristen: I’m Cristen. In October, California made major news by becoming the first US state to make stealthing illegal. And if stealthing, or nonconsensual condom removal, is also news to you, you're not alone. Until today's guest sounded the alarm about it, stealthing was a type of sexual consent violation that happened but no one really knew how exactly to talk or feel about it

Alexandra: Basically, two people agree to have sex, they agree to have sex with a condom and then part of the way through that sex, one of the people removes the condom without asking for consent to do so without getting that consent. And so the sex transforms from something that was initially consensual into something that's not consensual.

Caroline: Alexandra Brodsky is a civil rights attorney and the author of the new book Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash.

Cristen: Alexandra first began envisioning what sexual justice for stealthing could look like when she was still a student in law school. Because let's just think about the stakes for a second. Condoms are supposed to make sex safer and more pleasurable. But imagine discovering that someone deceived you, mid-intercourse and took the condom off. So on top of being lied to, you're also wondering whether you contracted an STI and / or could be pregnant.

Caroline: Obviously, it's wrong — but wrong enough to hold someone legally responsible for stealthing since it doesn't neatly fit our definitions of sexual violence? In law school, Alexandra wrote a paper for a class outlining the possible legal responses to stealthing. She then submitted the paper to a prestigious law journal — and what happened from there still mystifies her.

Alexandra: The paper ended up attracting quite a bit of media coverage, which is to this day, pretty shocking to me - that is not a common occurrence for legal scholarship, not what happens with most law school papers. But, you know, my best explanation for it is that a lot of people had had this experience and thought that they were the only one and hearing that this is something that had happened to other people and that there might be a legal framework for addressing it was a form of affirmation.

[stinger]

Caroline: Alexandra’s pursuit of sexual justice started when she was a freshman at Yale. A guy she thought was a friend tried to rape her. She reported it to the school — and Yale tried to cover it up.

Cristen: A couple years later, Alexandra was part of a group of students and alumni who filed a Title IX complaint against Yale for its mishandling of cases like hers. Those experiences led Alexandra to co-found the organization Know Your IX. Now, you might have heard us mention Know Your IX on the show before, because it is such an incredible resource. It provides education and support to help students across the country assert their rights when it comes to sexual violence on campus.

Caroline: It was through Know Your IX and conversations with other students that Alexandra first heard stories about guys agreeing to have sex with a condom on and then secretly taking it off during the act.

Alexandra: I was working with lots of survivors across the country and hearing about all kinds of different forms of sexual violence that don't look like the Law and Order SVU version of a stranger jumping out of the bushes. Alexandra [00:12:26] Nonconsensual condom removal is sort of a really common form of sexual violence that is always going to happen in the context of otherwise or originally consensual sex that is going to attract a lot of biases and rape myths. And as a result was so under-discussed, and the law wasn't really designed to address it, right? The law is designed to address a stranger rape with a weapon that results in physical injuries and lots of physical evidence.

Cristen: In 2013, Alexandra started law school hoping to figure out that conundrum. How could the law address sexual harm that doesn’t fit the SVU stereotype?

Caroline: That stuck in Alexandra’s head all the way to final semester when she decided to write a paper about nonconsensual condom removal and its legal implications. The central question she set out to answer was whether existing law could be applied to stealthing, and if not, what kind of new law would?

Cristen: First, Alexandra needed to find out more about the act itself, but she didn't have much to go on. In 2016 — not very long ago — there was virtually no research about nonconsensual condom removal, how common it is, its impact on victims. Nothing.

Caroline: Most of the folks who were talking about it were the cisgender men bragging about doing it and trading how-to tips on message boards.

Alexandra: A lot of the ways that people - I dunno - engaged in promoting non-consensual condom removal, talked about it, really were deeply gendered. You know, it's about man's right to spread his seed. So for me, this is why it makes sense to think about nonconsensual condom removal as part of, you know, a range of forms of sexual violence because so much of it ultimately comes down to asserting power, asserting dominance over a person who you’re really called for in that moment to have unique care for, unique respect for.

Caroline: But the key piece of Alexandra’s research was interviewing victims of stealthing.

Alexandra: I wanted to get a sense of what felt wrong about it. And you know, that might sound trivializing that it wasn't apparent. But the truth is that I wanted to understand not just that it felt bad, but in the particular ways, what kind of injury it felt like. And so many people talked about it as a violation of an agreement, almost in contractual terms, right? We came to an agreement about what was going to happen in this bedroom. And then something different happened without him asking. A lot of people talked about not just the physical injuries that might arise, like transmission of an STI, but about a dignitary harm - that they felt like their partner was saying what you want doesn't matter. You as a person who gets to make decisions about your life, you don't matter to me. They just hadn't heard about other people experiencing stealthing. And so felt really alone. Felt like this was some kind of freak occurrence that they'd been subject to and didn't know that they were right to understand it as a form of sexual violence.

Caroline: One of the women Alexandra interviewed described stealthing as 'rape-adjacent.’ It was such a perfectly gray-area term that Alexandra eventually used it for the paper’s title

Alexandra: A lot of my hesitation in if it just if I'm honest in labeling the experience straightforwardly as rape in my paper was that some of the people I talked to didn't feel it that way. Some of them had been sexually assaulted in sort of more obviously legible ways and then had experienced stealthing and thought that they were different. And it felt uncomfortable to go in and say, “Well, you don't think that you were raped, but you really were.” You know, that's not that's not a position I want to be in. So I basically this is all to say, I think that both positions are are valid and just goes to show you that people experience violence in different ways.

Cristen: Yeah, and it also it also gets to the point you've made in terms of validating what what felt like harm, but these survivors were not able to necessarily articulate as harm - that something does not have to be like clearly defined like the stranger-danger, stereotypical kind of — I say stereotypical in terms of like the discourse —

Alexandra: Mm hmm.

Cristen: It doesn't have to be clear-cut rape in that way for there to still have been harm that occurred.

Alexandra: Yeah, 100 percent. So much of my focus has been on the experiences of survivors that don't fit into our expectations of what sexual violence looks like or how people will respond to it.

Caroline: Once Alexandra had a clearer understanding of the harm caused by stealthing, it was time to assess how the law could address it. Which presented another research challenge: Alexandra couldn't find any instance that a US court had even been asked to consider a stealthing case. There were a few cases of folks lying about being sterile or STI-free to coerce partners into unprotected sex. But not nonconsensual condom removal.

Cristen: So in her paper, Alexandra gamed out how existing law could apply to a hypothetical stealthing case. What she determined was that it would be extremely hard to convince the state to criminally charge someone for stealthing, much less get a conviction. Under existing civil law, you could sue for emotional damages, but again, the odds of winning would be low. Which is why Alexandra argued that new, stealthing-specific laws are the answer.

Alexandra: Ultimately, my conclusion was, you know, you could try you could try to fit y’know a square peg into a round hole and argue that existing American laws provide survivors a remedy against nonconsensual condom removal. But I really worried that that wouldn't work in court because none of the laws were an exact match, and we know that these survivors are going to face unique skepticism when we come forward.

Caroline: That’s why Alexandra proposed that a new civil — rather than criminal — law would be the best option to address stealthing. And that distinction is important

Alexandra: The thing that ultimately makes me feel very comfortable endorsing a civil remedy rather than a criminal remedy is that I find in my practice I've probably worked alongside or for a thousand survivors more than that since I've started doing this work, I don't know anyone whose case has ever been prosecuted to a conviction. I know one person whose case was ever taken up by by prosecutors. And so to me, talking about what the potential benefits of a criminal versus civil law might be, it feels like a civil remedy is useful, both because it avoids the costs of criminalization, and because it's just more likely to be useful to more people.

Caroline: Another benefit of civil, rather than criminal, sexual violence cases? For one thing, you can get a court order to make sure the person who harmed you stays away from you. But also, winning a civil case often comes with some kind of financial remedy.

Alexandra: I think a lot of people are uncomfortable with the idea of someone receiving a check from their rapist. But for so many survivors, that's much more meaningful than seeing the person who hurt them incarcerated. And I don't, you know, survivors are different from one another. There's a huge variety of experiences. People want different things, but for so many people, what they most want is the opportunity to rebuild their life. They want the chance to see a therapist. They want the chance to, you know, move away from the person who harmed them and they need the money for first month's rent. And you know on a deposit, they need a chance to take time off from work, and they just can't afford to do that right now. And the financial award at the end of a civil lawsuit can open up all those doors to them in a way that incarceration never could.

Cristen: Ok, so in terms of proving a civil stealthing case, what about situations that don't result in unwanted pregnancy or STI transmission, some of the more physical harm. What would be the evidence in those situations, like how would you go about proving that harm occurred?

Alexandra: That's a tough question that, I'll be honest, comes up in a lot of sexual violence cases where there isn't, you know, clear physical evidence like bruising and where you don't have another witness in the room. But people prove these cases. And so one thing I'll say is that my recommendation in the paper was that the non-consensual condom removal should be a civil offense rather than a criminal offense. But one really key piece here is that, you know, as everyone who has ever watched a crime drama knows, to have a successful criminal prosecution requires convincing a jury beyond a reasonable doubt that the crime in question occurred. In a civil lawsuit, you only have to prove that it's more likely than not that it occurred. You only have to get right above a 50 percent threshold. I'll also say one thing that continually surprises me in my practice as a lawyer representing survivors is there's often a lot more evidence than people would think in sexual violence cases. You know, sometimes there's a roommate who overhears something or overhears the fight that happens after the assault. Very often, a survivor will confide in a friend or family member shortly afterward or write something down in their journal, and that's evidence. And also a lot of times it is amazing what people will put in writing. You know, there will be a text message from the assailant the next morning saying, I hope you're not too mad at me about what happened last night. I pushed things a little bit too far. And that's, you know, very convenient for my clients when that happens.

Cristen: Alexandra handed in her stealthing paper, and it must have impressed her professor, since Alexandra next submitted it to the Columbia Journal of Gender & Law. And when we come back, the paper goes viral.

Caroline: Stick around.

[stinger]

Caroline: We’re back with Alexandra Brodsky. Practically as soon as her paper came out in early 2017, it took on a life of its own.

Alexandra: I mean, the internet is a weird thing. I gotta tell you. Here's my best memory of what happened. My best memory is. So I write this paper in law school. kind of on a whim after I graduated I submitted it to a like a legal journal on gender in the law for publication. It publishes. I tweet about it. And I think someone from the Huffington Post or something like that saw the tweet, wrote an article. And then it just caught fire from there.

Caroline: The inevitable downside to it catching fire was media sensationalizing. Lots of headlines calling stealthing a “sex trend.” A “dangerous new sex trend” is spreading!” .. “a disturbing sex trend” is on the rise!!

Cristen: But another, more important, reason stealthing went so viral is Switzerland.

Caroline: Oookay, tell me more.

Cristen: So a woman in Switzerland filed charges against a dude for stealthing. The case went to court right after Alexandra's paper was published, and the woman's lawyer actually presented it in court to support her argument! The court found the dude guilty of rape and sentenced him to 12 months in jail. Now, an appeals court ultimately lowered the conviction from “rape” to “defilement” but upheld the 12-month sentence. And this was the first ruling of its kind in Swiss legal history.

Caroline: I mean, it’s amazing the kind of immediate waves that paper made. And a similar thing happened in Germany a year later. A police officer was found guilty of nonconsensual condom removal and sentenced to eight months in jail plus fines.

Cristen: And all of this got researchers talking about stealthing, too. So like we mentioned earlier, when Alexandra began investigating stealthing in 2016, no one had really studied it in depth. Especially not in the context of penis-in-vagina sex.

Caroline: Yeah, from what we could find, the term stealthing first appeared in scientific literature in the mid 2000s. It emerged in research on HIV transmission, because in gay internet subculture, stealthing meant nonconsensual condom removal with the intent to give someone HIV. Which is…disturbing … and also extremely rare.

Cristen: What’s not rare at all is nonconsensual condom removal among cis men who have sex with cis women. So, in a handful of stealthing studies from the US, Canada and Australia — all published on the heels of Alexandra’s paper — the percent of women who’d experienced it ranged from 10 to over 30 percent. Among cis queer men, that number was 19 percent. And female sex workers were also much likelier to report it happening. Here’s Alexandra.

Alexandra: I've heard a lot from sex workers over the years since this article came out talking about the ways in which, you know, I think sex work necessarily is really attuned to a continuum of consent, right, where people can consent to certain actions, but not to others. And that's that's part of a negotiation. And that when you know someone removes a condom during sex, that is a violation of that agreement the parties have come to and that sex workers are then sort of uniquely often incapable of coming forward to law enforcement or making some other kind of report because they fear that they will be the ones who end up being punished or prosecuted.

Caroline: The broader context is also important to understand. Because stealthing is a part of a spectrum of toxic sexual behavior. On one end, you have condom resistance and coercion. On the other end, you have what's called reproductive control.

Cristen: Let's look at condom resistance first — think, a partner who complains that sex doesn't feel as good with a condom on. Or someone lying about their STI status to convince their partner to have unprotected sex. Stuff like this is EXTREMELY common. Up to 80 PERCENT of young men who have sex with cis women said they've tried to get out of wearing a condom. Eighty Percent, y’all. In studies of high school and college-aged folks, a little over 20 precent of cis het women said they'd been the ones to resist condom use.

Caroline: On the other end of the spectrum, you have reproductive control and abuse. That typically refers to men exerting control over their female partners' reproductive choices — so, maybe they're screwing with their birth control or forcing them to get abortions or carry unwanted pregnancies.

Cristen: Stealthing falls somewhere in the middle. One paper distinguished it by its nonconsensual, selfish intent. Often the motivation for stealthing is about sexual power, not reproductive control. But all these behaviors fit into broader patterns of sexual and intimate partner violence.

Caroline: Let’s take a quick break to digest. When we come back, we turn to California and its new anti-stealthing law. Plus, Alexandra helps us understand what it could mean for survivors.

Cristen: Stick around.

[stinger]

[Cristina Garcia clip]

Cristina: So with A.B. 1033, we’re making it clear that the act of stealthing is a form of rape.

<crowd cheers>

Cristina: I hope all those men out there blogging, egging each other on, talking about how they have this right are paying attention. Because in California, we’re gonna make sure that we lead the way for the rest of the nation, and that that trend ends now.

<crowd cheers>

Caroline: We’re back. In early October, a week before we interviewed Alexandra, California outlawed stealthing. The new law was sponsored by Assembly member Cristina Garcia, whose voice you just heard, and it makes stealthing a civil offense — which would allow survivors to sue their perpetrators.

Cristen: Garcia said she was motivated to propose the legislation after reading Alexandra’s paper on stealthing.

Alexandra: My hope, and maybe this is maybe this is naive, maybe this is overly lawyerly of me is that even people who don't bring lawsuits themselves will benefit from this law being on the books because it is a clear signal that we agree that this isn't OK. It'll give them confidence in their own convictions there. And because I do think it can do culture change work, ultimately, obviously, law is not the primary means of prevention. I don't want to be, you know, starry eyed and pretend that legal change is ultimately what's going to deliver us the revolution. But I do think that it plays a role in establishing clear community norms that stop people from committing violence in the first place.

Caroline: Are there any potential negative ripple effects to stealthing laws?

Alexandra: You know, I worry about whether survivors are going to be able to find attorneys. I also honestly just know that going through a lawsuit can be really tough. It can be just really emotionally difficult and losing can be really devastating, you know, going before a jury or know, going before a judge and having them say that they don't believe you or dismissing the case on legal grounds. That can be an incredibly demoralizing experience. Ultimately, I think it's better for survivors to have a shot right and to be able to make the decision themselves about whether the potential downsides of litigation are worth it to them. But I certainly am keenly aware of the ways in which law can really not do do what we want it to do, can profoundly disappoint. You know, I think that there are always concerns with any kind of law, about whether it will be enforced in discriminatory ways. You know, if if juries are more likely to think that certain kinds of people are more likely to commit stealthing than others based on their race or sexuality or class. But those same biases also face survivors. You know, we know that, white, straight, cis wealthy survivors are more likely to believed than anyone else. And, you know, I think that that's a truth about all kinds of sexual violence, that's a truth about law in general. I don't think that's a particular or unique problem to nonconsensual condom removal.

Cristen: Would you like to see other states follow California's lead?

Alexandra: Definitely. I'm really hoping that other other states take this up, I know that there had previously been some interest in New York and Wisconsin, but I'm hoping that the win in California will inspire them to keep up those fights and that other states might take it up. And I'm I'm hopeful, in part because. I don't want to suggest that sexual violence isn't political. Of course, sexual violence is political, but it's a good sign that this got through the California Legislature without a big partisan fight, that it had support from both sides of the aisle.

Caroline: Yeah, it shouldn't be controversial. I mean, is there any reason why more stealthing laws in other states would be controversial or hard to pass?

Alexandra: I would hope not, but I am constantly surprised by opposition to common sense legal reform for survivors that happens all the time and how partisan these fights can get. You know, I think that there are a lot of people, particularly on the right, whose response to any kind of allegation of sexual assault is “this is an attack on men.” And you know, this is something I talk about a lot in my book that there's really this whole contingent of men's rights activists. And then there are more polished allies who are often lawmakers and important policymakers who really think that any progress for survivors is inherently unfair to men. And to them, it's always very gendered. Even though we know that people of all genders hurt people of all genders, to them, they're always imagining that lying vindictive women who are upset that this guy didn't call them the next day are going to lodge false rape accusations against these men. But really, what underlies this is just a belief that it is fundamentally unfair for anyone to get into trouble for sexual harm.

Cristen: What happens next with anti-stealthing laws remains to be seen. But Alexandra feels like she’s already succeeded just by helping give people a name to describe what happened to them and the confidence that they aren’t crazy or overreacting. That stealthing isn’t just a bad hookup. It’s wrong.

Alexandra: To the point about naming things, this is this is a long feminist story. You know, we're now at 30 years since Anita Hill testified against Clarence Thomas in his confirmation hearing, and her testimony spurred a huge increase in sexual harassment complaints to the federal agency that hears these complaints. And you know, there are many stories for why that is, but I think that one of the sort of explanations there is just that. Anita Hill gave a name, gave a sort of a structure for understanding an experience that so many people and in particular so many women had had, and seeing someone name your experience and say, “I think this is worth speaking up about, I think that this shouldn't be tolerated” can lead other people to feel more confident in their right, not to be treated that way and that they they deserve some kind of recourse in the aftermath.

Caroline: Y’all can find Alexandra on Twitter @azbrodsky, and don’t forget to pick up her book Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash! You can also check out Know Your IX at know your I X dot com. And hey - shoutout to an Unladylike listener who has started a change dot org petition to get New York state to pass its own anti-stealthing law.

Cristen: And as always, you can get in touch with us on instagram, facebook and Twitter @unladylikemedia. You can also support Caroline and me directly by joining our Patreon; over there, you will get our undying love and gratitude, and also weekly ad-free bonus episodes like our recent debate on whether Gen Z has body image figured out way better than us Millennials. Find it over at patreon.com/unladylikemedia.

Caroline: Nora Ritchie is the senior producer of Unladylike. Michele O’Brien is our associate producer. Gianna Palmer is our story editor. Shruti Marathe transcribes our tape. Our music is by Flamingo Shadow, Amit May Cohen and Sarah Tudzin. Mixing is by Andi Kristins. Sound design and additional music is by Casey Holford and Andi Kristins. Executive producers are Peter Clowney, Daisy Rosario and Unladylike Media.

Cristen: This podcast was created by your hosts, Cristen Conger

Caroline: And Caroline Ervin of Unladylike Media.

Cristen: Next week

Caroline: In our large cultural mind, obviously, this is painting with the broadest brush like sex is penis in vagina long enough that you both cum.

Cristen: And preferably at the same time.

Caroline: At the same time with a big ol’ O face and anything else is just somehow like, it’s not cutting the mustard.

Cristen: We’re giving you a peek behind the Patreon curtain, with a feed drop of our recent bonus episode about the so-called Female Orgasm Industrial Complex! We’re talking about Lean In Sexuality and allll the businesses that have cropped up to help people with vulvas cum quote-unquote “better.”

Caroline: You don’t want to miss this episode, y’all! So make sure you’re subscribed to Unladylike. Find us in stitcher, spotify, apple podcasts or wherever you like to listen.

Cristen: And remember, got a problem?

Caroline: Get Unladylike.

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