BILL NUMBER: S7156

SPONSOR: SAVINO
 
TITLE OF BILL:  An act to amend the penal law, in relation to uncon-
sented removal or tampering with a sexually protective device

 
PURPOSE:

To prohibit the unconsented removal or tampering of a sexually protec-
tive device.

 
SUMMARY OF PROVISIONS:

Section 1 creates a new subdivision 3 to section 130.20 of the penal
code defining acts that would constitute the crime of sexual misconduct.
The new subdivision 3 stipulates that during the course of sexual inter-
course, oral sexual conduct or anal sexual conduct, a person who, with-
out consent from the other party, removes or tampers with the efficacy
of a sexually protective device, or intentionally misleads the other
person into believing one was being used when one was either not used or
inoperable, shall be guilty of sexual misconduct. The section also
              

defines a "sexually protective device".

Section 2 sets the effective date.

 
JUSTIFICATION:

Nonconsensual condom removal, or "stealthing" as it is commonly known,
is the secretive and non-consensual removal of a condom during otherwise
consensual intercourse. A recent article in the Columbia Journal of
Gender and Law has brought critical attention to this practice, which
describes it as "rape adjacent" and akin to rape.  Stealthing occurs in
situations where parties have freely agreed to engage in sexual inter-
course or sexual conduct conditional upon the agreement that a sexually
protective device such as a condom would be used. Its removal can be
understood to violate that conditional consent and transform consensual
sex into a nonconsensual act.  Victims are left exposed to the physical
risks of pregnancy and sexually transmitted disease, as well as the
mental violations of dignity and autonomy.

Existing law prohibits sexual activity without both parties' consent and
goes into great detail to define what constitutes said consent.  An
argument for defining nonconsensual condom removal as a form of sexual
assault revolves around the idea of affirmative consent -- wherein
condom removal vitiates consent. This concept is preserved in state
statute through the groundbreaking 2015 "Enough is Enough" law tackling
college campus sexual assault and included a uniform definition of
affirmative consent. This definition states that affirmative consent is
"a knowing, voluntary, and mutual decision among all participants to
engage in sexual activity. Consent can be given by words or actions, as
long as those words or actions create clear permission regarding will-
ingness to engage in sexual activity."  Using this reasoning, if consent
is based on the use of a condom and that condom, is removed or not used
at all without the consent or knowledge of one of the participants, the
original consent is at an end. Furthermore, sex with and without a
condom have very different amounts of risk involved, and are therefore
separate acts that require separate consent.


While the term "stealthing" might be new, the practice of nonconsensual
condom removal itself is not. Since the publication of the Columbia
article, a growing number of victims have come forward to cite their own
experiences. For some offenders, this practice goes far beyond conduct
of "boys being bad", but rather representative of a more disturbing,
predatory behavior. Online forums exist where offenders detail exploits,
describe their motivations - which often include a need for control,
dominance or sexual supremacy - and share tips on how to remove or break
a condom without their partner being aware. Admitted accounts from
perpetrators have also pointed to gender-motivated reasons linked to
gender-subordination and misogyny.  While men have also been noted to be
victims of nonconsensual condom removal, the majority of victims are
women.

This legislation would establish an additional sexual misconduct offense
wherein during an act of sexual intercourse, oral sexual conduct or anal
sexual conduct a person using a sexually protective device, such as a
condom, intentionally and without consent removes the device during the
act; when the a person using the device intentionally and without
consent tampers with the protective device and that device is used
during the act; or when the person intentionally misleads the other
party into believing a sexually protective device would be used when one
was, in fact, not.

 
LEGISLATIVE HISTORY:

This is a new bill.

 
FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law.