NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A511
SPONSOR: Paulin TITLE OF BILL:
An act to amend the penal law, in relation to unconsented removal or
tampering with a sexually protective device
PURPOSE:
To prohibit the unconsented removal of 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,t hat a sexually
protective device such as a condom would be used. Its removal can be
understood to violate that conditional con-sent 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 sexu-
al 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 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 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 repre-
sentative 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 conductor 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:
2023-2024: A.1078 referred to codes
2021-22: A.4994 referred to codes
2019-20: A.502.referred to codes / S.4401 referred to codes
2017-18: A.8733 referred to .codes / S.7156 referred to codes the nine-
tieth day after
FISCAL IMPLICATIONS:
None
EFFECTIVE DATE:
This act shall take effect have become a law.
