Introduction
Despite new laws and reforms, there are 22,172 reported rape cases in 2021 so far.[1] Sexual violence in any form is the worst kind of physical assault that a woman goes through during her lifetime. More than 160 years since the emergence of the Penal Code[2], no law recognises new sexual offences existing under the garb of sex.
One of the recent concerns is stealthing or non-consensual condom removal (NCCR), where the male partner deliberately and secretly removes his condom during sexual intercourse without the consent from his partner.[3] This trend or practice of sexual intercourse exposes victims vulnerable to unwanted pregnancy or sexually transmitted disease (STD) which is a grave violation of a women’s dignity and autonomy.
The removal of condoms may be interpreted in transforming consenting sex into non-consensual sex or sexual violence by a two-way theory. Firstly, by the concept of consent, requiring transparency regarding the reproductive ability or sexually transmitted infections (STIs), and secondly, by exploring the potential for solutions to be available to victims through Indian criminal, tort and contract legislation through the adoption of alternative measures, the theory of consent which is examined in detail in this paper.
Ultimately, providing a new approach for dealing with non-consensual offences to provide victims with a more viable cause of action and to better reflect the harms wrought by those offences.
Global approach
There is no established jurisprudence in the world for stealthing to have a precedent. Nevertheless, in one way or another, several countries’ courts have addressed the matter.
With that, the Supreme Court of Canada has classified stealthing as rape and has become one of the first countries for defining the term.[4] The Court ruled that the man is guilty of rape for making holes in the condom without the partner’s prior consent. The case interpreted broadly the concept of consent and held that consent given as a result of a misrepresented identity is not consent and encompass that the tearing and removal of protection without the prior consent of the victim comes under the ambit of rape.
Moreover, the problem of stealthing attracted worldwide attention when the Supreme Court of England ruled out that the NCCR falls under the ambit of rape and established the doctrine of “conditional consent”.[5]
However, with a different line of approach, the Court of Switzerland recognised the act in the form of rape, however, the higher court brought it under the definition of defilement and not rape.[6]
Recently, a German High Court in Schwesig held that stealthing, which they regard as a sexual assault, now will be considered as rape.[7] The German Court explained this approach – that the sexual relationship was consensual but removing condom is non-consensual and will fall under the ambit of rape.
Consent and India
The legal implications of NCCR are unclear at present in India. The position of consent will play a vital role while defining NCCR in India. Consent of partners is the cornerstone of sexual activity. A breach of that needs to face harsh consequences. The availability of legal remedies for NCCR depends on whether removal of condoms vitiates consent to the continued intercourse. The main question in the context of India is whether the consent requirement is desirable to differentiate sex from sexual assault.
Further, the global approach is still ambiguous with different jurisdictions and their precedents. Indian rape laws are ambiguous in situations where sexual activities take place in violating the consent between partners. This ambiguity interests powerful and detriment victims.[8] There are many cases in India, where one of the parties revokes consent during sex and due to no judicial precedent remained as an issue. Likewise, the act of stealthing is an unaddressed issue in India.
Consent implies an unequivocal private agreement between the partners, where a woman by her words, gestures, or other kinds of verbal or non-verbal communication, conveys a desire to engage in the specified consensual intercourse. However, Indian laws has always been challenging in not recognising different forms of rape and ultimately, do not fall under its limited definition provided under Section 375 of the Penal Code[9].
Although there is no explicit mention of stealthing in the Penal Code, yet the Explanation provided in Section 375 clearly states that consent is the most important element for sexual intercourse. When a man makes a promise to wear protection throughout sexual intercourse, he has obtained another partner’s consent for this particular sexual conduct. If the companion does not know or consent to the removal of the condom in the middle, then it does not take into consideration the right to say “no”.[10] However, the law is quite clear that providing consent to sexual activity once does not count for all future sexual contact. Therefore, this act of “removal of condom” can thus be defined as rape in the section in the context of its explanation.
Therefore, it can be inferred that the Penal Code recognises consent in its wide form and honour partners to respect for which the consent was given. This consent will be considered revoked when an act that has not been consented to is performed or if irrevocably tainted by the reasons referred to in Section 90 IPC[11]. With the same analogy, victims of NCCR consent to the specified sexual intercourse with a condom, however, after removal of the same, the consent of the partners carried away from further acts arising from a previous act.
Moreover, stealthing will attract different risks associated with unprotected sex. Intercourse without a condom increases the chance of pregnancy and STI transmission. The removal of the condom changes the sexual act into a separate act as a result of the heightened risk. In Barbara A. v. John G.[12], the Court of Appeals of California determined that the man had committed violence because his partner agreed to intercourse based on false representation of infertility. The Court stated, “consent to an act, otherwise a battery normally vitiates the wrong” and held that the act of impregnation exceeded the scope of the consent and rendering the act as a battery.
Observably, in addition to criminal law jurisprudence, tort law and contract law could be used creatively to combat stealthing.
Rights available in personam against stealthing
Tort Law
A tort is a breach of some duty that causes damage to the other party in a contractual relationship. The essence of tort is to give remedy to the person who has suffered an injury. In the case of NCCR victims may find their remedies in tort law. Several courts have ruled that relationship might lead to a duty of care required for negligence claims. Therefore, if a partner with an STI in sexual intercourse fails to take precautions to avoid transmission, along with disclosing the risk to it.
Further, several countries have criminalised the transmission of STI and held it to be negligence per se under tort.[13] These STIs due to NCCR give rise to a claim of fraudulent or conscious misrepresentation effectuating physical harm that requires proof of physical injury.
Like common law battery, sexual battery torts do not require the victims’ knowledge of the contact at the time it occurs.[14] A more reliable common law approach would be a tort of battery, which might be the ground of liability for the offensive but not physically dangerous contact. In common law, it is reasonable to understand the unwanted contact between the penis or semen and the vaginal walls, cervix and anus as an offence of battery. Therefore, the contact of private parts is deliberate, the victim does not consent to any contact and thus, the contact is an attack on the person’s dignity.
Contract Law
Contract law strengthens the power of trust as it provides the rationale behind the other party’s act. In addition to pregnancy and STIs, the NCCR victims complained of a betrayal of confidence, which violated their dignity and autonomy. The experience of NCCR might also be considered to be a breach of the contract. The focus on violence in the context of battery lawsuits, criminal prosecutions, or gender violence does not include a key element of the wrong – a breach of a contract with a lack of consideration for the will and welfare of others.
However, courts usually refuse to accept sex as a genuine contract because the consideration for sex with a condom is hard to envision as a result of the agreement. In Marvin v. Marvin,[15] the Supreme Court of California held that the agreement will be null and void if sex had played role in the agreement, because “in reality, such a contract is a prostitution arrangement and hence, illegal.” The Court, therefore, made it plain that sex is unacceptable for contract law reasons, while the agreement does not actually exist, but merely, in essence, prostitution.
Thus, in the case of non-consensual removal of condoms, the main power of contract law is probably to be an ethical lens rather than a functional instrument besides the precedential barriers to a successful claim.
Futuristic legislative measures
With Indian legal strata and jurisprudence concentrating mostly on rights in rem, the primary jurisprudential measure against stealthing should be mirrored in criminal law. This abovementioned picture has highlighted how important the reforms in the criminal justice system are needed, to provide particular measures to combat the newly recognised crime of stealthing.
The legislators must focus their attention on these current and critical issues, as they will alter India’s legal interpretation of consent which will further pave a way forward for amending many laws in the future.
The paradigm of rape will be changed by expanding the realm of consent by including a provision for stealthing in the Indian criminal justice system. The notion of rape has been described as “any sexual intimacy imposed on one person by another”. Forcing someone to do something without their consent is known as coercion. As a result of the focus on the element of coercion, many additional offences that have uncertainty in the criminal justice system as to whether they should be criminalised or not will be criminalised.
In this element of coercion, marital rape is one of the most serious offences. Marital rape refers to forced sexual encounters between a husband and wife that are not deemed as “rape” under Indian law.[16] However, logical eyes see all compelled sex as rape. Rape is seen as a kind of violence and a form of power, and we may conclude that males with limited social and psychological resources are more prone to use marital rape to frighten, compel, and dominate their wives. Marital rape may stem from a husband’s lack of linguistic abilities and inability to debate on an equal footing with his wife, or it may be a way for the husband to demonstrate his dominance over his wife despite being uneducated or jobless.
Therefore, criminalising women’s decisions to become and remain pregnant would be a violation of their right to reproductive freedom under the Indian Constitution–Article 21[17].[18] Seeing this violation of constitutional principles many new laws needs to be enacted to enhance India’s criminal justice as a result of strengthening the consent paradigm.
Conclusion
Non-consensual removal of condoms is disregarded by law and constitutes a damaging type of sexual assault, typically based on gender. Current legislation may remedy problems but the prospect of victim’s victory can only be encouraged through a new cause of action and limiting harmful effects. In its finest way, such a legislation would react explicitly to the harm victim’s experience and declare that “stealthing” not just “feels violent”, it is violent and unavailability of reforms in such a situation would shake the foundations of global justice and equality mostly against woman.
*3rd year students, BA LLB, Institute of Law, Nirma University, Ahmedabad.
[1]World Population Review, Rape Statistics by Country 2021, WPR.
[3]Paulina Firozi, California Could Become First State to Make it Illegal to Remove a Condom without Consent, The Washington Post, 10-2-2021.
[4]Craig Jaret Hutchinson v. R., 2014 SCC OnLine Can SC 59.
[5]Julian Assange v. Swedish Prosecution Authority, 2011 EWHC 2849 : 2011 EWCA (Civ) 2849.
[6]Leila Ettachfini, Man Accused of “Stealthing”Will Not be Convicted of Rape, Vice, 10-5-2017.
[7]DPA, Secretly Pulled off the Condom–Higher Regional Court Overturns Acquittal, 19-3-2021.
[8]Anupriya Dhonchak, Standard of Consent in Rape Law in India: Towards an Affirmative Standard, 34 Berkeley Journal of Gender, Law & Justice, 36 (2019).
[10]Nicholas J. Little, From No Means No to Only Yes Means Yes : The Rational Results of an Affirmative Consent Standard in Rape Law, 58 Vanderbilt Law Review 4 (2019).
[12](1983) 145 Cal App 3d 369.
[13]Louis A. Alexander, Liability in Tort for the Sexual Transmission of Disease Genital Herpes and the Law, 70 Cornell L Rev 101 (1984).
[14]Louis A. Alexander, Liability in Tort for the Sexual Transmission of Disease Genital Herpes and the Law, 70 Cornell L Rev 101 (1984).
[15](1976) 18 Cal 3d 660.
[16]Sarthak Makkar, Marital Rape: A Non-criminalised Crime in India, Harvard Human Rights Journal, 1-1-2019