It is appalling that in 2017 we still need to have a conversation about sexual consent.
In April 2017, Alexandra Brodsky published an article in the Columbia Journal of Gender and Law titled RAPE ADJACENT: Imagining Legal Responses to Nonconsensual Condom Removal. It brought to light the sinister practice of men taking off condoms without their partners’ consent (the slang term for it being “stealthing”). This practice does not exclusively affect women having sex with men, as gay men have also been victimized.
This article is not going to dignify the practice by calling it by its slang term as doing so trivializes a violation of a person’s right to bodily integrity and self-determination. It is not going to address the personal failings of those – usually MRAs – who advocate for or practice non-consensual condom removal, though it is HIGHLY tempting to do so.
This article IS going to revisit the notion of consent and discuss the practice of nonconsensual condom removal and the potential legal ramifications of it under Canadian criminal and civil law. This article will limit discussions to nonconsensual condom removal as I covered the topic of consent in detail in December 2015 and thus far those laws remain unchanged.
Consent is not transferable
By law, consent is the voluntary agreement to engage in sexual activity. Without consent, sexual activity becomes sexual assault.
It is widely recognized that consent for one sexual act does not constitute blanket consent for any and all others. Consenting to vaginal sex does not mean, for example, that you also consent to anal sex. In the context of nonconsensual condom removal, agreeing to have sex with a condom does not mean you consent to have sex without one.
There is no consent if a person, having consented to sexual activity, “expresses, by words or conduct, a lack of agreement to continue to engage in the activity”. That means that a person has every right to stop things at any time, and continuing despite their reluctance constitutes sexual assault. This is notion is important as nonconsensual condom removal often happens right before re-penetration. That means that the guy in question will pull out, take the condom off, and then re-penetrate their partner.
If the victim catches the person doing this and demands a stop to the activity and the person persists, that person crosses the line between consensual sexual activity and sexual assault.
As Brodsky points out, most victims of nonconsensual condom removal only realized the condom removal at the moment of re-penetration, when their partner ejaculated, or because their partner told them the next morning.
Intent is important
When Brodsky interviewed victims of nonconsensual condom removal, what was telling was the behavior of their partners afterward. According to the article, the men were dismissive, and often refused to help pay for emergency contraception or STI testing even though pregnancy and STIs are potential consequences of not using a condom. In her research Brodsky went online anonymously to look at what proponents of nonconsensual condom removal had to say about it.
The motivation for the practice stems in part from the desire for increased physical pleasure, but what’s more problematic was that it also stems from the thrill of degrading their sex partner and their belief in men’s inherent right to violence and to spread their seed.
All of this is extremely important in the context of mens rea for determining guilt for sexual assault.
Most crimes in Canada have two aspects, actus reus – meaning the act of the crime itself, and mens rea- the ‘guilty mind’ referring to the knowledge, recklessness, or negligence of the perpetrator engaging in the crime.
In Canadian Criminal law, the mens rea required for sexual assault cases is whether the perpetrator knowingly, recklessly, or negligently engaged in the sexual activity without the victim’s consent. One could argue that the dismissive attitude of a man engaging in this practice towards his victim combined with online expressions of his belief in his right to remove the condom for whatever reason and his taking glory in the degradation of his partner by violating their consent would provide the needed mens rea.
If Canadian Criminal law will not recognize nonconsensual condom removal as sexual assault, there is always civil law.
The Quebec Civil Code recognizes the inviolability and integrity of every person. It also recognizes that every person has “a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage, or law, so as not to cause injury to another” and that should a person endowed with reason cause injury to another – be it bodily, moral, or material – that person is bound to make reparation for it.
Bodily injury in Quebec Civil Law refers to damages to your physical body, material injury refers to damages to your property, and moral refers to psychological damages. While not an ideal remedy for the violation of bodily autonomy and fear of unwanted pregnancies and STIs, a victim of nonconsensual condom removal could sue on one or all three of these grounds.
Any STIs or unwanted pregnancies that ensue could be argued as bodily injury, loss of a job to deal with the fallout, physical or mental, of the violation could be grounds for a demand for material damages, and the psychological impact of the violation could be cause for moral damages.
Birth control rebuttal
In response to recent discussions about nonconsensual condom removal, there have been lots of people claiming that if this practice is illegal, it should also be a crime to lie about being on the birth control pill. People claim laws are unfair to men given that in March 2017, an Ontario court ruled against a man who sued a woman who lied about being on birth control prior to them having sex. She got pregnant and he sued for psychological damages.
While there is no disputing the immorality of lying about being on birth control, there are some fundamental differences between lying about being on the pill and nonconsensual condom removal.
First, there is no online cult of women working to deceive men about being on birth control due to a belief in some inherent right the way there is one of men who feel entitled to spread their seed regardless of the wishes of their partner. It should also be noted that birth control sabotage is not performed primarily by women desperate for a baby, but by abusive male partners looking to make a woman more dependent on him.
Second, lying about the pill does not put the man at risk of STIs the way removing a condom without consent puts the victims at risk.
Brodsky points out the third when she discusses the danger of legally enforcing demands for full reproductive transparency, which is that it puts vulnerable people at risk, such as those who cannot take birth control for health reasons but are stuck with partners who demand sex but will not use condoms.
It should also be noted that the reason why the Ontario courts ruled against the man in the aforementioned case is because it was judged primarily on family law grounds. In Ontario, family law cases are assessed in ways to benefit children and not favor one parent over another.
His case was dismissed primarily for the sake of the child that resulted from the woman’s deception, but also because it became clear that the plaintiff’s issue was not the sex, but the ensuing unwanted parenthood and potential financial obligations connected to it. Given that, a better equivalent for this case would be that of a man who lied about being sterile or having had a vasectomy in order to have consensual sex without a condom which resulted in a pregnancy.
In cases of nonconsensual condom removal, the victims only agreed to a specific sex act, one with a condom. The removal of the condom nullified their consent, and the willful violation of that consent is just that, a violation.
* Featured image: Women’s Health