BILL NUMBER: S4401

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
- stipulating that during the course of sexual intercourse, oral sexual
conduct or anal sexual conduct, a person who, without consent from the
other party, removes or tampers with the efficacy of a sexually protec-
tive 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 at 90 days after signed into law.

 
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.  s.k 1 Existing law prohibits
sexual activity without both parties' consent and goes into detail to
define what constitutes said consent. An argument for defining noncon-
sensual 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 willingness to engage in sexual activ-
ity." 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, domi-
nance or sexual supremacy - and share tips on how to remove or break a
condom without their partner being aware. Admitted accounts from perpe-
trators 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:

2018 Session - S.7156 - new bill - referred to Codes, no further action

 
FISCAL IMPLICATIONS:

None

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