This article is written by Nishtha Garhwal, from Alliance School of Law, Bangalore. This article tends to establish that stealthing should come under the definition of rape and for this purpose, the Indian laws have been compared with that of Canada in order to show that while interpreting stealthing, Indians must adopt the Canadian approach.
Table of Contents
An act recently in the discussion, that is, stealthing has emerged in a sexual relationship and this has given rise to debates across the globe on moral as well as legal grounds. Stealthing refers to the act where the condom is removed in the middle of sexual intercourse without the consent of another partner. It is like deceiving the other partner who has consented to protected sexual intercourse. In brief, stealthing can be considered as Non-Consensual Condom Removal (NCCR). It may consequently result in an unwanted pregnancy. In addition to this, it exposes the other partner to the risk of the transmission of Sexually Transmitted Diseases (STDs)
Alexandra Brodsky, who is a civil rights litigator and a Legal Fellow for America’s National Women’s Law Center, had published an article in 2017 in the Columbia Journal of Gender and Law. This article is credited with making stealthing a subject of popular discourse. The existing and proposed legal repercussions of stealthing were reviewed in this study and it also featured interviews with some stealthing victims.
In September 2018, a man who removed his condom amidst sexual intercourse without seeking the permission of his partner was held liable for rape by the Australian court. In Germany, a local court in Berlin held a police officer liable for stealthing on his partner despite the fact that his partner had explicitly asked him to wear a condom. In addition to this, in the States of Wisconsin and California in the United States of America, the lawmakers proposed Bills in order to criminalize stealthing. However, in a country like India where sex itself is taboo, the discourse around stealthing is very limited. Due to the absence of legal precedent in India as well as statistical research on the issue of stealthing, the illicitness of stealthing is still unclear.
In a country like India, the kind of notions that run give strength to the perpetrators, and suppress the voice of the victims of stealthing. This is quite evident from the fact that the cases of stealthing go unreported. Different countries attempt to give different interpretations to stealthing as a sexual offense and each country tries to give its own reasonable justifications for the same.
The principle of lawfulness is followed by the judiciary and it does not run on the principle of righteousness. Thus, the judiciary is bound to follow as well as interpret the laws existing in the country. However, as a result of the lack of any set standard, legal complications are going to happen. Thus, it becomes the duty of the judiciary to undertake the responsibility of taking steps in order to punish the culprit and provide justice to the victim by reasonably applying the laws and taking the viewpoint of the citizens into consideration.
An overview of the act of stealthing
In California, the Democratic Assembly has proposed a Bill in order to make stealthing an act of ‘sexual battery’ under the Civil Code of California. This has made the issue of stealthing a very controversial thing that gathered huge public attention. There were two attempts prior to the current Bill in order to criminalize stealthing, however, those attempts could not succeed in achieving their objectives. The reasoning that was given in order to reject the prior Bills was that if steathing is criminalized, it would overcrowd the prisons. Thus, the recently proposed Bill opted for a civil route.
As compared to the terminology, the act of stealthing is very common. The same was also proved by a Melbourne study which revealed that 1 in 3 women and 1 in 5 men had been the victims of stealthing. This study was conducted by a Melbourne Sexual Health Centre and Monash industry in which more than 2000 people were surveyed and the study also reported that more than 30% of the 1189 women surveyed had become the victims of stealthing and about 19% of the 1063 men surveyed who have indulged into sexual act with another man had been the victims of stealthing. Considering the fact that many sites on the internet teach men how to commit stealthing, it may seem usual to society and this deters the victims from reporting such cases of stealthing.
Any of the developed jurisprudence in the world do not specify stealthing as illegal under their laws and legislations. However, many courts across the world have attempted to deal with this issue in their own different ways. While dealing with the case of Assange v. Swedish Prosecution Authority (2011), it was held by the Supreme Court of the United Kingdom that stealthing would fall under the definition of rape. In addition to this, the court also introduced the doctrine of conditional consent, and with this, the issue of stealthing gained huge international attention.
There is a scarcity of legal remedies that are available in the case of stealthing. However, there is another act that goes highly unnoticed, that is, the act of reverse-stealthing. This refers to the act in which a man who is in a homosexual or heterosexual relationship becomes the victim of stealthing. Men are also prone to the risk of the transmission of sexually transmitted diseases as a result of unprotected sexual activities.
Root cause of stealthing
It is not a very rare phenomenon, however, the victims of stealthing are afraid and unwilling to openly talk about it. This usually happens because of a lack of awareness from a legal perspective and they feel that society would treat it as a trivial issue. The law graduates of Yale University conducted a study titled ‘Rape-Adjacent’ in 2017 and their study revealed that very often men tend to remove condoms in the middle of sexual intercourse in order to enhance sexual pleasure and also to ascertain their masculinity.
It has been reported that men often have the belief that they have a ‘right to spread their seed’ and this becomes one of the major reasons for the act of stealthing. Most of the men have a belief that they can indulge in any sort of sexual activity as they please with a woman once her consent is obtained.
In a country like India where it is already quite unpopular to use a condom while having sexual intercourse, the issues like stealthing get amplified. This happens because the removal of condoms amidst sexual intercourse for the sake of enhancing sexual pleasure by men is not regarded as a crime in India. The root cause of the issue can be traced to a male-dominated and patriarchal set up which further enhances the male ego. If we look at the National Family Health Survey statistics, it shows that although 94% of the male population in India has awareness about the use of condoms, however, only 5% or even less than 5% of the male population actually use it. In the ongoing male-dominated Indian society, the thought of equalizing stealthing with that of the crime of rape or sexual assault in India is something very far-fetched.
It is believed by Mrinal Satish, who is a professor and was also involved in structuring the laws related to rape in India in its 2013 Amendment, that technically stealthing should be brought under the ambit of the definition of rape. In addition to this, he said that if a sexual act takes place between two adults with some conditions, that act must strictly be confined to such conditions only. Stealthing should be considered a sexual offense and must be treated as the crime of rape because the act of steathing is deceptive, non-consensual as well as exploitative in nature.
As soon as the act of stealthing happens, it turns a consensual sexual activity into a non-consensual one and this clearly, amounts to rape. The act, in addition to being a threat to the body of another partner, also harms the dignity of such a person.
If we look at the legal system of India, the criminal liability of stealthing is still ambiguous. This is because there is not even a single case of stealthing that has been reported in India as the victims feel it is taboo and therefore, are scared of talking about it. Since there is no reported case of stealthing, there exists absolutely no legal precedent and judicial elaboration on this issue in the Indian legal system. This has also resulted in no statistical research in this area.
The global approach to stealthing
The people who are from the LBGTIQ+ community invented the term ‘Stealthing’ and it originated from the United States of America in 2014. The enhanced cases of the HIV-positive patients transferring the disease to the HIV-negative partners without their consent and knowledge prompted the need to bring the issue of stealthing into light and the LGBTIQ+ community performed this task.
Every country across the globe have their own parameters as well as interpretations in order to bring an act like stealthing under the purview of a criminal offense. In India, stealthing has not been clearly defined under the ambit of laws, however, if we look at the laws in Canada, it clearly includes stealthing under the definition of rape. In fact, Canada was among the initial countries that attempted to do so.
In the case of R v. Hutchinson (2014), without the knowledge and consent of the other partner, a man created holes in the condom and he was held guilty of rape by the Supreme Court of Canada. A broad interpretation of the definition of rape was given by the Canadian Supreme Court in this case and the Court included tearing, removal as well as tampering of condoms under the ambit of rape if it is done without the consent and knowledge of another partner.
In Switzerland, the criminal court recognized stealthing as rape, however, the higher court brought it under the definition of defilement and not under the definition of rape. Germany also has a similar approach to Switzerland and it considers stealthing as sexual assault and not rape. The reasoning that was given by the Swiss as well as German courts for adopting such an approach, was that even if stealthing was without the knowledge and consent of the other partner, the sexual intercourse was with the consent of such a partner. Before 2016, a different approach was adopted by the legislation of Germany in cases of rape and the German court held a man liable for the offense of rape only if the victim physically resisted the perpetrator.
One of the consequences of stealthing is unwanted pregnancies. In the case of Assange v. Swedish Prosecution Authority (2011), a man gave his consent for indulging in protected sexual intercourse. However, he became the victim of stealthing as the woman deceived him and made him believe that sexual intercourse was protected. Consequently, the woman became pregnant. The Court dismissed the appeal of the man although it said that emotional harm was suffered by him. However, the Court relied on the fact that no physical harm was caused to the man due to steathing by the women as only women can become pregnant. Therefore, a woman is free if she wishes to promote her own pregnancy.
Indian scenario of stealthing
In the Indian case of Suchita Srivastava v. Chandigarh Administration (2014), it was held by the Court that if a woman’s decision to get and remain pregnant is criminalized, it would be a violation of her right to reproductive freedom guaranteed under Article 21 of the Constitution of India.
In India, sex is considered taboo, and this aids in suppressing the victim’s voice and strengthening the perpetrator’s voice. If we look at the Indian scenario, the judiciary and legislature have not paid much attention to stealthing. As a result, we do not have any clear laws pertaining to stealthing in the Indian legal system. Thus, awareness about stealthing remains a concern in India and there is a negligible amount of research in this area.
According to a study that was conducted in 2005, the masculine ideals of sexual conquest, experimentation as well as entitlements are some of the primary causes for practicing risky sexual activities in India. These ideals coupled with about less than 5% of the population in India actually utilizing contraceptives when indulging in sexual intercourse further aggravates the issue of stealthing in India.
Need for stealthing to be recognized under Criminal Law
In order to critically study the criminal liability of stealthing in the Indian context, two approaches can be applied. Firstly, if someone gives a plain reading of Section 375 of the Indian Penal Code,1860, it explicitly and clearly does not mention stealthing. However, on understanding the explanation of this section, it can be clearly established that the statute considers that consent is very crucial and if the consent is conditional, that is, obtained for a particular sexual act, then it must be confined to that act only. In addition to this, consent is revocable. Thus, if someone has consented to have protected sexual intercourse, the same consent cannot be carried forward after the removal of condom amidst sexual intercourse. As per Section 90 of the Indian Penal Code,1860, if a person gives consent under the misconception of fact, then it amounts to no consent and the same thing can also be applied to the act of stealthing.
The second approach in order to view stealthing from a criminal point of view is to recognize the various risks that a victim of stealthing is exposed to. Unprotected sexual intercourse carries with itself enhanced risks of the transmission of sexual diseases as well as unwanted pregnancies. These things could result in significant medical implications. It has been identified that stealthing is an active method of birth control sabotage. The victim’s right to planned parenthood is snatched from them. In addition to this, it has also been identified that stealthing is a means of intentional transmission of HIV and this attracts criminal liability under Section 270 of the Indian Penal Code,1860 that defines the punishment for anyone who does a malignant act in order to spread infection of disease that could be dangerous to life.
Even if we keep the physical as well as the medical complications aside, it attacks the sexual agency of a person and thus, harms their bodily autonomy. This results in acute mental trauma to the victims leading to their loss of confidence in declining unwanted sexual advances. Therefore, it can be proved by the above analysis that all the ingredients of a crime are present in the act of stealthing. The only thing is that it had not been recognized as a crime. The civil route instead of the criminal route has been opted by the policymakers as well as researchers as far as stealthing is concerned. Therefore, there is a need for India to amend its penal provisions in such a way that rape is defined more in terms of consent instead of physical force. The responsibility of bringing stealthing under judicial as well as criminal framework lies on the lawmakers.
Legal perspective on stealthing
Section 375 of the Indian Penal Code, 1860 defines rape. The laws in India are often challenged for recognizing only the narrow definition of rape and not recognizing the different forms of rape. Although stealthing has not been clearly and explicitly mentioned under the Indian Penal Code, 1860, Section 375 states that a woman’s consent to sexual intercourse includes her voluntary consent and agreement in getting involved in a specific sexual activity either by words or gestures in the form of either verbal or non-verbal communication. This could be interpreted in the sense that if the consent of a woman has been obtained by a man in order to indulge in a sexual act with a promise of wearing a condom, he is bound to restrain himself to that condition as the consent has been obtained for that specific act only.
If removal of the condom happens in the middle of sexual intercourse without the consent or knowledge of the other partner, such a partner’s right to deny their consent is effectively disregarded. Therefore, Section 375 within the scope of its explanation could bring the act of stealthing under the definition of rape. In such cases of stealthing, it could be argued by the victim that they consented to have sexual intercourse with the condom on. Therefore, as soon as the removal of the condom happens without the knowledge and consent of the other partner, it is automatically concluded that there was no consent obtained for such sexual intercourse.
Section 375 of the Indian Penal Code,1860 clearly states that the insertion of objects as well as other parts in the vagina or any other part of women constitutes rape. Thus, the differentiation of different kinds of penetrations is recognized by this Section. In addition to this, the different kinds of penetration have been explicitly mentioned and differentiated under the Criminal Law Amendment Act of 2013. This was done so as to widen the definition of rape under the Indian legal system. Therefore, on this ground, it can be established that if a woman gives consent to have sexual intercourse with a promise to wear a condom, it does not imply that she is giving consent to all the various kinds of penetrations. And, thus, this proves why stealthing must be included under the definition of rape.
The terminologies that are used in the Penal Codes of India, as well as Canada, are quite similar and thus, the Indian approach towards stealthing needs to be modified and it should adopt the approach of Canada while considering the act of stealthing under the definition of rape. Consent is confined to the sexual activity that has been in question as defined under Section 273.1(1) of the Criminal Code of Canada.
In addition to this, the Canadian Supreme Court brought the act of stealthing under the ambit of the definition of rape as the consent for such an activity is said to be obtained by fraud and the same has been mentioned under Section 265(3) of the Criminal Code of Canada. The same interpretation can be applied to Section 375 of the Indian Penal Code,1860. If the consent of the victim has been obtained by the perpetrator by creating any false impression, it amounts to no consent.
In both Canada as well as India, a patriarchal element is present in the society, and thus, it becomes very important to have stringent laws and legislation. Since the 1970s, Canada had been hosting many Indian immigrants and this has led to the rise of Indian culture in Canada. Although people may migrate to different countries, their patriarchal mindset remains the same. Canadian as well as the Indian societies are multi-cultural and are influenced by its democratic government. This creates conditions of conflict and clashes among various cultures which further ignites hatred leading to enhanced rates of crime like rape. Due to such similarities between India and Canada on the social as well as the legal basis, it is very crucial for India to adopt the Canadian approach while interpreting the act of stealthing as consent is the most basic and important requirement of sexual intercourse and if anything is done without consent, it amounts to rape.
Although there exists no explicit provision in order to charge a culprit of stealthing, the fact that the removal of condoms amidst sexual intercourse violates the dignity, as well as the personal agency of the victim, cannot be ignored completely. Stealthing can be considered a violation of the right to lead a life with dignity which is included under the right to life and personal liberty by virtue of Article 21 of the Constitution of India.
The act of stealthing also violates the autonomy of one’s body and thus, attracts Article 21 of the Constitution of India. It has been stated by the Supreme Court of India that rape not only violates a statutory right but it also violates the fundamental right that is present with every citizen of the country under Article 21 of the Constitution of India. It was further emphasized by the Apex Court that every person has the right to bodily integrity by virtue of Article 21 which gets hampered and sacrificed in the cases of rape. Thus, it can be established that rape invades the private and personal space of one’s body.
If the law fails to recognize the right of a victim to withdraw their consent from any kind of sexual activity, it means the dignity, as well as the autonomy of such a person, is denied under the law. This is clearly a compromise with the victim’s right to dignity. Thus, stealthing is a clear violation of the victim’s right guaranteed under Article 21 of the Constitution of India, and therefore, it should be considered no less than rape.
It is not possible for the law and legislation to include everything under its ambit in today’s era of dynamism and thus, it becomes very crucial for the judiciary to undertake the duty of dynamically interpreting the existing laws from various perspectives. Despite the fact that the Indian Judiciary had done a great job by giving life to some of the very old and outdated statutes, due to the absence of sensitization, the Indian Judiciary has failed to dynamically interpret the laws pertaining to sexual crimes.
Most of the judges do not know how to treat the victims of rape as well as sexual assault and find it difficult to have a conversation with them. The situation of the victim is made miserable by the insensitivity of the judges which gets enhanced by the long trials. Thus, this is also the major cause of many sexual offenses being unreported in India. Thus, it becomes very important to train the judges especially in order to handle such situations efficiently and such judicial training would also enable the judges to understand the plight of the victim in a better way before arriving at any judicial decision and giving any judgment.
Stealthing has been a prevalent issue for a long time across societies around the globe although it may be a recent known phenomenon. It is very crucial that sex education must be introduced compulsorily into the curriculum in schools so as to make the students aware of the ways in which they can be sexually exploited and they get to know their rights as being a citizen of the country. This would also contribute to decreasing the hoax among the masses with regard to sexual activities. In India, the major problem is that if someone becomes a victim of stealthing, due to the fear of societal trauma they may have to go through, such a person resists reporting it despite the fact that their rights have been violated. In addition to this, the absence of clarity in the Indian legal system as far as the legality of sexual activities like stealthing is concerned, contributes further to the victim being unsure about coming out and talking about it. Since such cases of the manipulation of consent may appear trivial to most part of the population, unless these acts are explicitly declared illegal by the legal sanctions, the victims will continue to not report such cases.
The government should also take the initiative and start different literary programs in order to educate women about the rights available to them and in addition to this, they must be assisted by the government so as to report the cases of sexual assault as well as rape without fearing either the society or the judicial system.
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