The Meaning of California’s Bill Against Nonconsensual Condom Removal

Last week, the California legislature unanimously passed a bill making it illegal to nonconsensually remove a condom during sex, an act known slangily as “stealthing.” If the bill is signed into law, which Governor Gavin Newsom has until October 10th to do, the state will become the first in the U.S. to explicitly acknowledge stealthing as an illegal violation of consent. (Several countries, including Germany, Switzerland, and the U.K., have prosecuted the act as a form of sexual assault.) The bill, which was introduced by the assemblywoman Cristina Garcia, would amend the state’s civil code and allow victims to sue perpetrators for damages. This is the second time that Garcia has written legislation on the issue. Her previous bill, introduced four years earlier, proposed making the act a criminal violation but did not pass the legislature.

Garcia has credited her interest in addressing nonconsensual condom removal to a 2017 article written by the attorney Alexandra Brodsky, who was a third-year student at Yale Law School at the time. Brodsky’s paper, “ ‘Rape-Adjacent’: Imagining Legal Responses to Nonconsensual Condom Removal,” uses a combination of first-person interviews and legal analysis to make a case for stealthing as a transgression on par with other forms of sexual assault. It was published in the Columbia Journal of Gender & Law in the same year that Garcia introduced her first anti-stealthing bill. Uncommonly for a law-review article, it went modestly viral. “It will never stop surprising me that I wrote a term paper in law school, a bunch of people read it, and now there’s maybe going to be an actual law???” Brodsky tweeted last week.

I recently spoke to Brodsky, who is now a civil-rights attorney with the nonprofit Public Justice. Soon after graduating from college, she co-founded Know Your IX, an organization helping students navigate Title IX protections, and she is now the author of the recent book “Sexual Justice,” which turns an activist-cum-lawyer’s lens on ways that colleges, workplaces, and other institutions can fairly and humanely handle allegations of sexual misconduct. (An excerpt was published in The New Yorker last month.) During our conversation, which has been edited for length and clarity, we discussed California’s groundbreaking bill, the implications of whether sexual misconduct is a civil or criminal violation, and the surprising range of opponents to anti-stealthing laws.

How did you come to the idea of exploring nonconsensual condom removal as a legal topic?

Before and during law school, I spent a lot of time working with college students and young alumni who were concerned about sexual violence. I met a lot of survivors, and I was exposed to stories about a lot of different kinds of sexual harm. Sexual violence takes many forms—very little of it looks like the cliché of rapists jumping out of the bushes—and, especially among young people, sexual violence often happens in the context of otherwise consensual sex. When I started law school, I had this question in my head of whether nonconsensual condom removal is cognizable under any of the laws that we have today that address sexual assault, and in my final semester of law school I decided to dig into the question in a more meaningful way.

The bulk of the paper is legal analysis, which I think is probably not interesting to anyone other than lawyers. But I also talked to people who had experienced [stealthing], and heard them describe the injuries that it had caused. Even among people who agree that sexual violence is bad—which I would like to think is most people, though certainly not all—we sometimes have thin understandings of how sexual violence hurts people. The survivors of this harm talked to me about a range of feelings: how it made them feel powerless, how it made them feel as though their partners just had no concern at all for their autonomy. It was also interesting to me that a lot of the people I talked to were deeply hurt by the experience but didn’t know if they were right to feel that way. They didn’t know if what they felt as bad was really bad. In my experience, part of the value of naming these things is to affirm for survivors that they have the right not to be treated this way.

There’s a strong feminist tradition of making harms legible by giving them names—like “sexual harassment.”

Yes, that’s exactly right. It will never stop being bizarre to me that people have read this paper who are not directly related to me, or who are [not] my academic adviser. Usually legal scholarship does not gain a broad audience. But, if I have any explanation for it, it’s the fact that it was one of the first times that this phenomenon had been given a name in a public forum.

There was a pretty forceful critique of your paper, shortly after it came out, from the writer and activist Judith Levine. She argued that criminalizing nonconsensual condom removal, or making it a civil violation, would be a grievous overreach—she used the phrase “the privatization of sexual safety.”

I read Levine’s critique to be a civil-libertarian critique—in effect, that basically any turn to the law to address sexual violence will inevitably serve illiberal ends. In many ways, I understand the root of this critique, but the answer just cannot be that victims of sexual violence are allowed no legal remedy whatsoever. I’m a lawyer, so I obviously think that the law is useful sometimes, but I am much more interested in a careful balancing of the benefits and risks of law, and coming to sensible solutions, than I am in just throwing up my hands and giving up on the possibility of legal recourse for victims just because it’s hard.

It’s interesting to me how often civil libertarians seem particularly eager to decry any kind of legal regime specifically when it comes to sexual harms. I fear this sometimes reflects an expectation that victims of this particular kind of harm, who are disproportionately going to be women, must suck it up for the greater good in ways that we don’t expect of people who experience other kinds of harm.

In your paper, you ultimately conclude that this violation demands not criminalization but a civil remedy—which is what California is pursuing now. Cristina Garcia, the assemblywoman behind the bill, put forward a similar bill in 2017 aiming to criminalize the act, but it didn’t pass. Do you think that shift from criminal to civil violation made the difference?

I haven’t been involved in the behind-the-scenes of this bill at all. I do think that, for good reasons, many people are worried about expanding the reach of criminal law in any way, even for the kinds of harm that we would all agree are bad. This goes back to my partial sympathy for a civil-libertarian critique. Whenever we’re making something illegal, we have to figure out what the costs are of making it illegal. There could be many good reasons why people would feel more comfortable with a civil bill than a criminal bill. I favor a civil remedy because I think it’s far more useful for survivors. I’m not speaking for my employer here, but in my day job I’m a civil-rights lawyer. Many of my clients are victims of sexual harassment, and the criminal law has almost universally been utterly useless to them. A civil remedy has the benefit of keeping decision-making in the survivor’s hand. In a criminal prosecution, the victims rely on police and prosecutors to decide whether a case moves forward, which can be a profoundly disempowering experience, coming on the heels of the initial violation, which was itself a supremely disempowering experience. In contrast, in a civil violation, the victim makes the decision about whether to file the lawsuit. There’s a real feminist tradition of innovative civil remedies. The Violence Against Women Act originally had a civil remedy, though it was eventually shut down by the Supreme Court. I’m hopeful that this California bill will be an invitation to return to that tradition.

One of the critiques that comes up in conversations of nonconsensual condom removal is the question of the actual harm. There’s legal precedent for somebody becoming impregnated when they didn’t think there was a risk of pregnancy, or being infected with an S.T.I. when they did not think there was a risk of receiving an S.T.I. But those are consequences of condom removal—a law like this makes removing the condom itself illegal, even if there are no physical consequences. Is a violation of trust a sufficient harm?

That seems like a critique of the very concept that sexual assault is bad. It’s true that some people are, at least in part, upset that they were sexually assaulted because of physical injuries or pregnancy that results. But the fundamental injury is a denial of autonomy, a denial of the victim’s personhood. The idea that all of us get to make decisions about whom we have sex with and when and how—I’m disturbed that this would be at all controversial. To trivialize the injury of someone denying you the ability to decide how you have sex is a trivialization of all forms of sexual violence.

California isn’t the first state to introduce legislation against nonconsensual condom removal—New York and Wisconsin introduced bills shortly after your 2017 paper was published, but they all kind of petered out. Garcia’s earlier California bill didn’t pass a vote. What’s changed between then and now?

I don’t know enough about the New York, Wisconsin, and California legislatures to make some kind of comparative analysis. I do think that legislative change often takes a really long time. It requires more than, you know, someone writing a paper. There are other sources of influence. The TV show “I May Destroy You” had a plotline about nonconsensual condom removal—that did a lot to introduce the issue into public consciousness.

I remember the dialogue in the show being incredibly direct: a character says something like “This isn’t almost-rape. He is a rapist.” It’s a little jarring to realize that’s a distinction which, in the U.S., is just beginning to be made.

When someone says something is rape, it may be a legal claim, but I hear it first and foremost as an ethical claim. I think that there are many survivors of nonconsensual condom removal who do feel it as a rape. And there are some who don’t—including some of the people who I talked to. It just goes to show the work that law does in shaping our ethical and political commitments. Sometimes I feel that it is deeply uncool to care about law. I don’t believe that law will ultimately be the best or most effective tool against sexual violence, but I do think it is a tool, both for providing remedy to individual victims and also for shaping what we think is bad, what we think is acceptable. We can see frustrating versions of this, where people feel very confident saying that if something’s not a crime, then it’s no big deal. Obviously there are many things that are bad but not illegal. I don’t think that the law should be the ultimate authority on how we should treat one another, but it does shape our commitments.

Direct support to survivors from their community is going to do more than courts can in nearly all cases. Organizing around ending violence as a political project is going to do more to stop sexual assault and create systemic change and set up structures of support—that’ll do more than law can. But law can be a backup. Law can be a helpful tool for some people. That’s the cornerstone of the movement in which I now work.

If this California bill becomes law, what changes?

That depends a lot on whether attorneys step up and take these cases. I’m a big believer in civil remedies, but the obvious drawback is that you have to be able to find a lawyer in order to bring one of these suits. Theoretically, you can bring a suit pro se, on your own, but that is much less likely to succeed. This isn’t a problem unique to nonconsensual condom removal, but it will likely rear its head here.

It is also definitely true that the bill itself, and discussion of the bill, contribute to a public understanding of the harm that both provides validation to survivors and hopefully makes it clearer to people who are thinking of doing this act that they shouldn’t. Either because they might get in trouble, or because—well, it’s sort of hard for me to imagine how someone could do this and not realize that it was bad, but presumably there might be people out there. Hopefully the law and public discussion can shape their view. I do think that there is a nontrivial number of people out there who work with a pretty binary conception of consent—this idea that once you have said yes to sex, you have said yes to every possible permutation of that sex—and perhaps this bill will be clarifying to them.

The notion of consent as something that is, in fact, quite nuanced does seem like it needs to be articulated over and over again.

I have some hope that that’s changing. If you talk to college students today, they not only have a much richer understanding of consent but also have a critique of consent as being insufficiently attuned to sexual autonomy—consent as a floor rather than as an aspiration.

But then I see some of the people in my social-media mentions and I get discouraged again. A guy found me on Instagram to tell me that I was “a basic bitch who was ruining things for everyone.” And, you know, that’s not the Judith Levine critique. This is more like “Nonconsensual condom removal is a really fun thing that I enjoy doing, and now maybe I’m not going to be able to do it anymore.”

He seems to have a pretty narrow definition of the word “everyone.”

Not to belabor the point, but that’s exactly the problem something like the California bill is trying to remedy. When it turns out that the person you’re sleeping with has a definition of “everyone” that excludes you, that’s a pretty alarming discovery. My hope would be that, for people for whom it is not intuitive why it is bad to remove a condom without your partner’s consent, they'll now have to ask themselves why that law exists.