William & Mary Journal of Race, Gender, and Social Justice
Taking the Lead: A Strategic Analysis of Stealthing and the Best Route for Potential Civil Plaintiffs to Recover
A pervasive trend invading the sexual interactions between men and women, and homosexual men, is “stealthing” or “nonconsensual condom removal.” Stealthing garnered national and legal attention following Alexandra Brodsky’s article and study concerning the practice published in 2017. A typical stealthing case involves an initial, consensual sexual relationship between two parties predicated on the use of contraception. During the act, the partner removes the condom without the knowledge or consent of their sexual partner.
Despite its widespread impact, there has yet to be a criminal or civil case concerning nonconsensual condom removal brought in the United States, and the legislature has not proactively criminalized the conduct. The motives of the perpetrator as well as the harm suffered by the victims provide a compelling basis for a legal remedy, but it is difficult to predict how courts will respond when confronted with a stealthing case.
The primary goal for advocates of stealthing victims should be to obtain a legal remedy for their client with a secondary, long-term goal of gaining widespread recognition of the violation as being deserving of a specific cause of action. This Note will suggest that the best way to insure both the short-term and long-term goals is not through the creation of a new tort to address stealthing, but by using the existing precedent of battery as the legal basis for stealthing claims.