BILL NUMBER: S4032A

SPONSOR: SCARCELLA-SPANTON
 
TITLE OF BILL:

An act to amend the civil rights law, in relation to creating a private
right of action for unconsented removal or tampering with a sexually
protective device

 
PURPOSE OR GENERAL IDEA OF BILL:

To provide a private right of action for unconsented removal or tamper-
ing with a sexually protective device.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 amends the civil rights law by adding a new section 52-e that
creates a private right of action for the unconsented removal and
tampering of a sexually protective device, provided that the parties who
had agreed to sexual intercourse, oral sexual conduct or anal sexual
conduct had consented to the act with the explicit understanding and
knowledge that such a device would be used. The section also provides
              

that an action could be taken if one were intentionally misled into
believing that a sexually protective device was used when it was not or
was inoperable. Past consent to sexual activity without the use of a
sexually protective device shall not alone constitute consent to sexual
activity.  without the use of a sexually protective device at any future
time.  The section provides for the recovery of damages, including
compensatory and punitive damages. The section also expressly gives the
court discretion to consider the emotional impact of the defendant 's
conduct, including but not limited to, the risk of sexually transmitted
diseases, and the risk of nonconsensual pregnancy, in awarding damages.
The section also contains as well as a comprehensive definition of a
"sexually protective device."

Section 2 provides the effective date.

 
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):

A technical change to renumber the section of the civil rights law.

 
JUSTIFICATION:

"Stealthing" is the colloquial term given to the secretive and non-con-
sensual 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 adja-
cent" and akin to rape. Such an act can be understood to transform.
consensual sex - where condom usage was a condition for consent - into
nonconsensual sex, leaving victims exposed to the physical risks of
pregnancy and sexually transmitted disease, as well as the mental
violations of dignity and autonomy.

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 who no longer
feel that their experiences were isolated incidents.  Offenders, on the
other hand, have existed in online communities for some time where they
describe their motivations - which often include a need for control,
domination, or sexual supremacy - as well as 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, most victims are women.

An argument for defining nonconsensual condom removal as a form of sexu-
al assault revolves around the idea of affirmative consent - wherein
condom removal vitiates consent. This concept was preserved in state
statute with 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 vastly different amounts of risk involved and are therefore
separate acts that require separate consent.

Currently, no record is available indicating that a U.S. Court has ever
been asked to consider condom removal. (However, a Swiss court found a
man who had removed a condom during penetrative sex without his part-
ner's consent guilty of rape, although an appeals court later changed
the conviction to a lesser charge.) Nevertheless, rape and criminal
sexual assault cases are difficult to successfully prosecute.

This legislation would offer to victims a more viable cause of action to
better address the varied risks and harms they endure because of noncon-
sensual condom removal. The bill creates a civil path with a new tort
specific to the act while prohibiting the removal of a condom during sex
without both partners' affirmative permission. By passing this legis-
lation, New York would recognize that victims of nonconsensual condom
removal experience real harms - emotional, financial, and physical - to
which the law might provide remedy through compensation or simply an
opportunity to be heard and validated.

 
LEGISLATIVE HISTORY OF BILL:

A.665a of 2021 and 2022 advanced to third reading/ Same as S.5768A
committed to rules.

A.1313C of 2019 and 2020, advanced to third reading / Same as S.4400C,
amended and recommitted to codes.

A.8734A of 2017 and 2018, referred to judiciary / Same as S.7157A of
2018, referred to codes

 
FISCAL IMPLICATIONS:

There are no fiscal implications to the state.

 
EFFECTIVE DATE:
This Act shall take effect on the 90th day after it becomes law.