Is Stealthing a Crime in New York?

The short answer to the question “Is stealthing a crime in New York?” is no. Under the current New York Laws, stealthing cannot be criminally prosecuted, however it can expose you to civil liability. Importantly, laws are constantly developing. Anti-stealthing legislation has been proposed in many jurisdictions, including New York. It is uncertain when such legislation will become law, if ever.

Notably, stealthing is a crime in many other countries, such as Germany, Singapore, Switzerland and Canada. Criminal courts in these countries have already heard stealthing cases, some of which have resulted in jail time, suspended sentences or fines.

What is Stealthing?

Stealthing is the non-consensual act of removing or damaging a condom by the male partner without his partner’s affirmative consent. The concept of stealthing first came to light in a 2017 article in Columbia Journal of Gender and Law. Sexual violence prevention experts consider stealthing to be a form of sexual abuse. Because while the individual’s partner consented to engaging in protected sexual intercourse, they did not consent to engaging in unprotected sexual intercourse. Thus, the scope of consent is exceeded, making the encounter non-consensual.

Is Stealthing a Crime in New York?

The answer to the question “is stealthing a crime in New York,” is no. Under the current laws of the State of New York, “stealthing” is not a crime punishable by the NY Penal Law.

In 2017 – 2018 legislative session, the New York Senator Diane J. Savino has proposed an amendment to New York Penal Law § 130.20. New York State Senate Bill S4401. The bill, titled “Unconsented Removal or Tampering With a Sexually Protective Device,” would add a third subdivision to the statute and criminalize “stealthing.” As of 2019-2020 legislative session, such proposed amendment is not law. Rather, the legislation is still pending in the committee.

Is Stealthing a Crime in Any Other States?

Furthermore, “stealthing” is also not a crime in any other state state within the United States. Although it takes the law some time to catch up to societal practices or trends, is it uncertain when, if ever, stealthing will become a crime in any of the states.

International Stealthing Cases

Switzerland

In Switzerland, the Court sentenced a man to a suspended 12 month sentence for removing a condom without his partner’s consent during intercourse. Additionally, the man refused to submit to any STD tests.

Canada

In Canada, the Appellate Court ordered a new trial for a man acquitted at trial of sexual assault for reneging on his promise to wear a condom. The higher court held that sex without a condom is a very different activity than sex with a condom.

Germany

In Germany, a man received an 8 month suspended sentence and was ordered to pay $3,400 in damages for taking off a condom during intercourse without his partner’s consent.

Singapore

In Singapore, anti-stealthing legislation has been pending before Parliament since 2019. Section 376H, would criminalize “the procurement of sexual activity by deception or false representation.” This law would cover two “deception and procurement” situations:

• First, it would apply to “the use or manner of use of any sexually protective measure.” This would apply to stealthing situations – removing or intentionally damaging a condom during intercourse without the partner’s consent or knowledge.
• Second, it would pertain to misrepresentations of whether “one is suffering from or is carrying a sexually transmitted disease.”

This proposed legislation would punish stealthing by:

• Up to 10 years in prison,
• Caning, OR
• A fine.

Although courts in Germany, Canada and Switzerland have prosecuted men for removing or damaging condoms without their partner’s consent, to date a case like this has not been litigated in any U.S. court.

Can I be Civilly Sued for Stealthing?

Currently, under New York Law there is no civil cause of action specifically for stealthing. Although New York attempted to pass a law allowing for stealthing victims to seek civil damages from the stealthers, that bill did not become law to date.

Elements of Civil Claim for Stealthing

In order to recover for a stealthing claim, victims therefore must rely on traditional tort claims – such as battery, intentional infliction of emotional distress. Importantly, to recover on a tort claim, the victim must establish the following four elements:

1. Duty
2. Breach of Duty
3. Causation
4. Damages

Damages in a Stealthing Claim

While the first three elements may be easy for the Plaintiff to meet, demonstrating damages in a stealthing case may be difficult in most situations. Plaintiffs are required to show loss or quantifiable harm they’ve suffered as a result of the Defendant’s conduct. With that being said, if the Plaintiff in a stealthing case got pregnant or contracted a sexually transmitted infection, there would be damages awarded. However, if no physical harm happened to the Plaintiff, then getting civil damages on a stealthing claim under current New York Law is difficult.

Generally speaking, in order to obtain awardable damages based on stealthing allegations, victims of stealthing are be required to meet a very high standard by showing that the condom removal is “extreme, outrageous and intolerable in a civilized society.” Said standard, has proven to be a nearly insurmountable burden in general. Additionally, there is very limited, if any legal precedent available now on stealthing claims.

What Should I Do If I Am Accused of Stealthing?

If you are accused of stealthing someone, do not respond to the accuser in any form and retain counsel immediately. Frequently, there is absolutely no evidence of stealthing allegations; these types of cases are describes as “he said, she said.” However, once there is a text message exchange or a recorded phone call, it is much harder for you to deny the allegations. Even by corroborating a small part of the complainant’s story – like meeting up for dinner, or engaging in consensual intercourse, you are making it easier for the complainant to come after you. Both civilly and criminally.

Do not respond to any sort of stealthing allegations via text, email, or phone and retain an experienced counsel to handle this matter for you. Although there is no New York criminal or civil cause of action for stealthing, the law is constantly changing and evolving.

If a Detective or any other member of law enforcement calls you up regarding stealthing allegations, be polite. Request their name, contact information and which precinct, or detective squad they are assigned to. Do not engage in any further conversation. Nicely tell the detective you will contact your attorney and the attorney will reach out to the detective shortly. Do not confirm if you know the complainant. Your attorney will handle all further communications.

Stealthing Criminal Defense Lawyers

If you or a loved one have been accused of stealthing or received a civil demand letter from an attorney seeking damages from someone you were once intimate with, you need to get an attorney immediately. We have handled a few of these cases and civil demands. Contact us today to discuss your case.