Stealthing sounds like an unlockable skill in a role-playing video game. In reality, it's the terrible act of people secretly removing condoms during sex without the consent of their partners, which exposes their partners to the risk of disease and unintended pregnancy. While it's legally questionable whether stealthing qualifies as sexual assault (and thus uncertain whether the perpetrator could be held criminally liable for his or her actions), victims of stealthing may be able to extract some justice in civil court via a personal injury lawsuit. Here's more information about this option.
Legal Avenues for Collecting Damages
The act of purposefully removing a condom without a sexual partner's consent qualifies stealthing as an intentional act. As such, there are a couple of torts based on intentional conduct you could use to sue the perpetrator for compensation for damages and losses.
The first is battery, which is defined as non-consensual harmful or offensive contact between the perpetrator and the victim. The most common example of this is when one person hits another. However, almost any contact can fall into this category as long as three elements are present:
- The perpetrator intended to commit the act
- There was physical, non-consensual contact with the victim
- The victim sustained physical, emotional, or mental harm as a result
For a judge or jury to rule in your favor in a stealthing case, you would have to show the defendant intended to remove the condom (i.e. it didn't accidentally fall off), the defendant proceeded to engage in or continue sexual contact (e.g. intercourse), and you were harmed in some way as a result (e.g. was infected with an STD).
Another tort that may be applicable to your case is fraud, which is defined as the use of deception to obtain a gain or deprive another person of his or her rights. It's possible to make a fraud charge stick to the defendant if you can show:
- The defendant intended to deceive you either directly or by concealment
- You relied on the defendant's representation
- You were harmed as a result of the defendant's misrepresentation
For instance, if you only consented to having sexual relations with the defendant because he or she agreed to use a condom, it could be considered fraud when the person engages in stealthing because the person gained the benefit of sex through deceptive means, i.e. making an agreement he or she never intended to keep.
Challenges to Winning the Case
There are a few other torts that may be applicable to your case, such as intentional infliction of emotional distress. However, it's important to understand this type of lawsuit will be challenging to win for a couple of reasons.
First, you must prove the defendant intentionally removed the condom. Outside of an outright confession, this can be hard to do because condoms can slip off if they're not appropriately sized, when the erection is lost, or during certain sexual positions.
However, this issue may be helped by the fact that when condoms do slip off completely, they tend to remain in the orifice. So if the person claims the condom slipped off but you find it on the bed or in the trash directly after sex, you could use a mix of biology and circumstances to prove the person participated in stealthing.
Second, you must prove you were harmed in some way. This is easier to do if you contracted an STD, got pregnant, or suffered other physical harm as a result of the defendant's actions. If there were no physical repercussions, you will have to prove you were emotionally harmed by the act, which involves showing you suffered serious and ongoing emotional repercussions (e.g. PTSD, depression). This typically requires obtaining a statement from a doctor or psychologist backing up your claims.
For more information about this issue or help holding a defendant liable for the injuries you sustained from an act of stealthing, contact a personal injury attorney.