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Prosecuting stealthing may not be the best way to end the practice.

“Stealthing” is the surreptitious removal of a condom mid-intercourse, even when the receptive partner has refused unprotected sex. Since the lawyer Alexandra Brodsky published an article in April calling for a legal avenue for women to seek restitution for stealthing, the media and lawmakers have been all over it.

Stealthing, announced the New York Post, is “the newest dangerous sex trend.” Stealthing, according to USA Today, is “on the rise.” Britain’s Birmingham Mail claims that stealthing “is sweeping the globe . . . with females urged to exercise caution.”

Like other expressions of male supremacy—primogeniture, manspreading—the proponents of stealthing (yes, it has proponents) justify their prerogative with appeals to Nature. “It’s a perfectly natural and normal instinct for a man to desire to drop his load in a woman just as it’s a woman’s natural instinct to receive and welcome that load into her body. Don’t hesitate to do what you’re intended to do,” reads an online Comprehensive Guide to condomless intercourse against a woman’s wishes.

Stealthing is old nastiness in a new bottle, but should it be criminalized?

But stealthing is not only a guy-on-girl thing. Mark Bentson, a gay, racist, right-wing conspiracy-monger in the mold of Milo Yiannopoulos, launched the Twitter hashtag #BBBH, short for Bareback Brotherhood, a celebration of gay men who have condomless sex and, in some cases, engage in stealthing. A 2014 post condemning Bentson on a gay pro-condom blog claimed the practice was “gaining in popularity.”

Recent media claims notwithstanding, there is no evidence that stealthing is new, a trend, increasing, or pandemic. The #BBBH hashtag has been in use since 2011, and HIV/AIDS researchers and activists have discussed barebacking, consensual and non-, for decades. People who deal with domestic violence have long been aware of reproductive coercion, wherein an abusive man prohibits his partner from using contraception, in order to control her. A respondent to one study reported that her partner repeatedly got her pregnant, then forced her to have abortions. As for the unilateral decision to ejaculate without pulling out, all I can say is that one of the Three Great Lies I heard as a teenager was “I won’t come inside you.”

Stealthing is old nastiness in a new bottle—with an added dose of resentment toward the reproductive rights and self-determination that women have gained through feminism. Rogue attempts at involuntary impregnation are the private version of the defunding of Planned Parenthood.

But should stealthing be grounds for civil damages, especially if no sexually transmitted infection is contracted and no one gets pregnant? Does this usurpation of consent rise to the level of a criminal offense? And what does the call to take stealthers to court say about consent, risk, and the promise and limitations of the law in achieving equality and safety?

• • •

Brodksy’s article “Rape-Adjacent: Imagining Legal Responses to Nonconsensual Condom Removal,” published in the Columbia Journal of Sex and Law, is a polemic wrapped in an analysis. It asserts that stealthing is a form of “gender violence” that needs legal redress. Brodsky considers the remedies available through current criminal, tort, contract, and civil rights law; finding them all wanting, she concludes that a new tort—a litigable personal wrong—“is necessary both to provide victims with a more viable cause of action and to reflect better the harms wrought by nonconsensual condom removal.” She proposes that the tort be based on the recognition of a new wrinkle in compromised consent: a person says yes to touch by a latex-covered penis but no to touch by a bare one.

“Situating nonconsensual condom removal within the broad category of gender violence reveals that the practice is an ethical wrong with practical, psychic, and politically salient repercussions for its victims,” writes Brodsky, a fellow at the National Women's Law Center and a founder of Feministing. Other feminists have endorsed this idea, calling the act sexual violence or “rape by another name.”

Laws that prosecute sexual dishonesty pass without controversy, but often trespass on civil and human rights such as privacy and bodily integrity.

This is not the first time Brodsky has turned her considerable intelligence and ambition to parsing male sexual harm and imagining ways to punish it. While an undergraduate at Yale, she cofounded Know Your IX. Among other things, the organization petitioned the federal government to step up enforcement of its 2011 instruction on campus sexual assault investigations under Title IX by publishing the names of institutions that do not pursue investigations aggressively; imposing financial sanctions on those institutions; and requiring that information on “previous and ongoing” cases be made publicly available. Garnering 175,000 petition signatures and adopting the handle Ed Act Now , the campaign won swift action from Washington.

Results have been mixed. On the plus side, more attention is focused on sexual assault on campus. On the minus, colleges and universities have instituted codes of sexual conduct and quasi-judicial tribunals that ignore the constitutional protections afforded defendants in the criminal justice system and use their power to crack down on consensual relations between faculty and students as well as allegedly offensive speech, encroaching on the First Amendment and academic freedom. Brodsky has expressed no regrets about unintended consequences of her student activism.

As a lawyer, however, she seems to be going for moderation. Her article offers caveats about punitive criminal strategies gone wrong and crafts meticulous civil alternatives. But just as the fear of lost funding and bad press has contorted colleges’ responses to sexual violence, politics has a way of mangling subtle distinctions. Brodsky may prefer civil remedies, but the term “gender violence” cries out for violent-crime penalties, and it is the rare lawmaker who can resist the vote-getting gift of some fresh sexual mischief to criminalize.

So sure enough, within weeks of the publication of Brodsky’s article, legislators in Wisconsin, California, and New York introduced bills expanding criminal statute to account for stealthing. A Swiss court handed down the first-ever rape conviction for nonconsensual condom removal (later reduced to defilement); prosecutors had submitted Brodsky’s article as a supporting document. The victory may trouble Brodsky, who worries that laws premising consent on full sexual or reproductive transparency might backfire on women exercising reproductive choice. Yet if Wisconsin’s bill passes, that is exactly what will happen. It prohibits the removal of any “sexually protective device” without the other person’s knowledge and consent, including cervical caps, sponges, and other female contraceptive methods.

The urge to prosecute dishonesty in sex is not new. Such laws generally pass without controversy, but often turn out to trespass on civil and human rights such as privacy and bodily integrity. For example, two-thirds of U.S. states criminally prosecute HIV-positive people for having sex without disclosing their HIV status. In every state, according to Sean Strub, executive director of the Sero Project, defendants who have HIV face tougher charges or longer sentences than those who do not. For instance, biting or spitting on someone while HIV-positive may be considered assault with a deadly weapon, even though the virus cannot be passed through saliva.

The sex offender regime is one of the chief contributors to mass incarceration, kept aloft by a robust sector of professions that legislate, litigate, analyze, medicalize, and publicize a proliferating catalog of sexual misdeeds.

Presumably these penalties are meant to deter unsafe behavior and thus diminish sexual risk. But HIV criminalization is antagonistic to public health. Fear of prosecution inhibits people from getting tested or participating in partner notification, two effective prevention tactics. One large study found an inverse relationship between the frequency of newspaper coverage of HIV criminalization and the number of people who get tested. Other researchers discovered that in states that criminalize HIV transmission, men who have sex with men are more likely to have unprotected anal intercourse. HIV criminalization is also based on outdated notions of life with HIV. Antiretroviral treatment (ART) has transformed the once-fatal illness to a chronic but manageable condition. When ART reduces a person’s viral load to undetectable levels, the risk of transmission drops effectively to zero. Condoms are almost as effective.

To prosecutors of HIV nondisclosure, none of this matters. They bring charges and win convictions even when the defendant wore a condom or was not infectious. Likewise, the proposed laws that would criminalize stealthing would not require that the victim get pregnant or contract an infection. The perpetrator could be STI-free at the time of the encounter. The woman could be taking the pill. In fact, among Brodsky’s informants, none “reported actually becoming pregnant or being diagnosed with an STI.”

And yet, she says, they “experienced real harm.” Beyond anxiety about pregnancy and disease (and the costs of tests), they “spoke of a betrayal of trust that insulted their dignity and violated their autonomy.”

The crime, in other words, is moral. The harm is emotional. The losses, aside from dignity and autonomy, include a sense of predictability and security. Stealthing is a mindfuck. Whatever its physical risks, at the heart of the emotional harm may be the feeling of risk itself.

• • •

Laws to punish stealthing and the nondisclosure of HIV status are among the latest additions to the U.S. regime of sex offender punishment, management, surveillance, and treatment—a regime built upon perceptions of risk and technologies of its prediction and mitigation. Sex crimes statute organizes the public’s often misplaced and hyperbolic fears of sexual predation into a typology of monsters, and codifies means of taming them that are often more symbolically satisfying than effective. The departments that administer the regime are often called Sex Offender Management and Containment. To minimize risk the sex offender is taught to “manage his deviant behaviors.” The state contains him.

The “pedophile” lurks in schoolyards waiting to snatch kids. Work, residency, and travel restrictions cordon him off (even though sexual abuse almost always happens at home). The “sexually violent predator”—a person with a “mental abnormality” predisposing him to commit crimes—is so dangerous that in twenty states he may be confined indefinitely, after completing a prison term, to “civil commitment” in a locked “therapeutic” facility. Because the sexually violent predator (a diagnosis unrecognized by the Diagnostic and Statistical Manual, the bible of psychiatry) is by definition incurable, few are ever released. Similarly, the AIDS monster is a viral vampire seducing his victims to join him in living death. HIV criminalization is the silver stake. The stealther has the mien of a lover, until he slips off the latex barrier between pleasure and peril. His unique brand of creepiness deserves its own chapter in the law books.

The sex-crime regime’s functioning is guided by a battery of risk-assessment instruments. The tests’ results assign the offender to a “tier” on the sex-crime registry (and thus how scared others are of him); determine the duration of his registration (up to life); and decide whether he is subject to community notification, civil commitment, or treatment, which can be as harsh as chemical castration. This actuarial jurisprudence has spread beyond sex law enforcement into the rest of the criminal legal system, from bail determinations to sentencing and parole conditions. Not surprisingly, the algorithms encode the racial and sexual biases of the tool’s makers—for instance, a man who has a male victim is considered more dangerous than one with a female victim. The instruments are also alarmingly unreliable.

Our intolerance of risk may be matched only by our illusion of control. But as every bookie and broker knows, the magnitude of risk is affected by its own perception. When people start selling stocks in fear of a market crash, panic ensues and the market crashes.

Whatever its physical risks, at the heart of the emotional harm may be the feeling of risk itself.

The numerical scores of the assessment tools lend them the shine of precision, blinding us to the fact that sex crimes statute measures nothing more than the dimensions of morality, normality, or social acceptability at a given time, categories that slip and overlap. The “dangerous new sex trend” of stealthing is already accruing the imprimatur of science. Most reports called Brodsky’s article a “study,” implying systematic research. When the author calls the practice “common,” you might think she has measured its prevalence. But her impressions are drawn from interviews with an unspecified number of “survivors”— she says she has since heard from a “startling” number of others—and the boasts of self-styled stealthers, most of which strike me as fantasy fiction.

Political rhetoric also has implicit metrics, which are inscribed in the law’s penalty clauses. “The brave victims who have come forward to speak of their harrowing experiences have done a service to every victim who has suffered in silence, unsure and confused by the assault,” declared New York Assemblyman Francisco Moya in a statement introducing the state’s anti-stealthing bill. I do not minimize the odiousness of this act or the injury these women felt. But a harrowing experience justifies a longer sentence than a merely unsettling and confusing one. Moya’s bill classifies nonconsensual condom removal as a third-degree rape, which carries a sentence of up to four years. The same dynamic works in civil procedures. The more frequently and floridly the harm is described, the greater grows the public’s familiarity and sympathy, and thus the damages that courts award.

• • •

Sex is a risky business, both physically and emotionally. Still, on balance, it is one of the safer things we do; a lover’s body is a harbor of care and repose in what the German sociologist Ulrich Beck calls the “risk society.” Beck coined the term to describe a world in which our technologies create catastrophic hazards such as global warming and nuclear annihilation while capitalism generates increasing economic precarity and inequality. Add in the permanent War on Terror and “fear determines the attitude towards life. Security is displacing freedom,” writes Beck. “The ‘fear business’ will profit from the general loss of nerve.”

Part of the fear business is the prison-industrial complex. And the sex offender regime is one of the chief contributors to mass incarceration, kept aloft by a robust sector of professions that legislate, litigate, analyze, medicalize, and publicize a proliferating catalog of sexual misdeeds. Although the regime is one of laws, it is subject to the vagaries of a free market of (often bad) ideas. If Brodsky and others believe they can direct government intervention only into the sexual matters they find offensive, Wisconsin should serve as a lesson: one of the first states to move on criminalizing stealthing, it also severely restricts abortion.

The risk society and its opportunistic twin, the fear business, are products of neoliberalism, which produces danger by dismantling public infrastructures and institutions while shifting responsibility for health and well-being onto individuals and families. If we falter or sicken, neoliberalism blames us; if we turn crazy or criminal, it punishes us. As the president advances plans to slash programs that help prevent and ameliorate HIV/AIDS and sexual violence—six members of the presidential HIV/AIDS advisory council resigned last week in protest—the attorney general escalates the wars on drugs and victimless sexual misdemeanors. Recently, on his initiation, the House passed a bill that would mandate fifteen-year prison terms for teen sexting.

All this demands collective resistance and solidarity, not individual retribution. The lawsuit is a political tool but it is not the same as politics; a tort is a business transaction that monetizes personal misery. I have no faith that jailing or billing individual condom removers will heal a culture of gender antagonism or decrease sexual risk. By the same token, HIV criminalization creates “an illusion of safety for those who do not have HIV or do not know their HIV status, putting the entire burden of HIV prevention on those who have been tested and know they have HIV,” writes Sero Project’s Strub. “The statutes undercut the fundamental public health message that HIV prevention is a shared responsibility and that everyone should act in such a way as to maintain their own health and protect themselves from contracting HIV or other sexually transmitted infections.” And, I would add, protect one another.

In the 1980s, while Washington ignored the plague tearing through gay communities, activists staged “die-ins,” lying down in agency lobbies and statehouse rotundas to demand government action. And while preachers blamed the victims’ “lifestyles” for their deaths, in the bathhouses men were trying to save lives by improvising a repertoire of sexually satisfying but mutually protective practices. Safe sex was a dance of self-defense and generosity and an enactment of evolving community values, reinforced by social reward or opprobrium.

Not the church, not the state, a community of lovers was deciding its fate. Feminists, especially lesbians, gave their hearts to that proud movement. Now feminists must resist collaborating in the privatization of sexual safety.