Consent has been discussed in numerous ways when it comes to sex and rape. Some have even posited that the term “non-consensual sex” is misleading as sex is something that happens when the parties involved are all consenting whereas rape is an act of violence and therefore not a form of sex. They feel the term should be discarded entirely to make a clear distinction that sex must be consensual to be deemed as such.

Nonconsensual condom removal popularly known as “stealthing,” can be understood to transform sex into sexual assault by one of two theories. One of which poses a risk of over-criminalization by demanding complete transparency about reproductive capacity and sexually transmitted infections and the other adopting the alternative, preferable theory of non-consent.

Sex and the Law

In legal confines sexual behavior is legal when it is safe and consensual. For legal consent, it suffices that the following among others are met:

1. The conduct has no unacceptable physical risks (including any physical pain that persists after the activity).

2. The person is not deceived about the benefits of the conduct, or about any suffering that occurs during the conduct.

3. The person is conscious and is readily capable of making and communicating an objection and knows or expects that an objection will be honoured.

Read: “Women need options when a man says no to a condom”: An interview with Kenyan HIV activist Jacque Wambui

Using these conditions as the basis it stands that a man removing a condom during sex would be “illegal” as:

1. The conduct has unacceptable physical risks as it could lead to STI, STDs and unwanted pregnancy

2. The person is intentionally deceived about the suffering occurring during the conduct as it is leading to the above

3. The person although lucid is unknowing(unconscious) and therefore incapable of making and communicating an objection

Even though physical risks should be acceptable in sex if they are acceptable in other activities such as sports, which of the physical risks are acceptable strongly depends on the presence of informed consent (or partial informed consent) to such risks. The issue of informed consent arises in cases of tangible harm that cannot be undone because safe sex involves no such harm.

Know your HIV status Photo: Flickr Jon Rawlinson

Although the act is technically not yet illegal a man was convicted of rape in Switzerland earlier this year after taking off a condom during sex without his sexual partner knowing. The landmark decision by the Criminal Court in Lausanne, Switzerland, determined that having sex without a condom constituted rape if the use of one was expected.

Sex and Morality

As per our deductions above sex is an unwritten but somewhat binding agreement where both parties are acquiescing to conduct themselves within the confines of what has been discussed prior to or during the act. These and other factors leading up to the act forms a sort of trust that either party will “Do no harm”.

Read: #RUReferenceList: Shifting the shame to rape perpetrators

“Survivors experienced nonconsensual condom removal as a clear violation of their bodily autonomy and the trust they had mistakenly placed in their sexual partner, they describe non-consensual condom removal as a threat to their bodily agency and as a dignitary harm” study author Alexandra Brodsky, a legal fellow at the National Women’s Law Center, wrote.

For most men, the reason they remove condoms; often when changing positions so their partner doesn’t notice; is because they prefer the feel of sex without wearing one. But some also do so to exert power over their partners.

A man living with HIV prepares to take his medicine at the HIV/AIDS Care Center, a hospice in Myanmar. Photo: ANP/ EPA/Lynn Bo Bo

Many women; for it is predominantly women; who are victims of stealthing struggle with forms of mistreatment by sexual partners that aren’t considered part of the recognized repertoire of gender based violence, but that seemed rooted in the same misogyny and lack of respect.

Sex and Pop Culture

With the social connections that have been heightened by social media and access thereof, communities of men discussing how to get away with stealthing and swapping tips have become more common.

Just a little research online and you can stumble upon comprehensive guides to “Stealth Sex” that detail the various ways to remove a condom during sex and even how to play it off if caught.

Prevention

Unfortunately there are more guides on how to stealth than there are on how women can protect themselves against it. A further demonstration of society’s myopia in matters of gender based violence and sexual assault. Social media discussions have however given rise to some prevention measures:

1. Stay Woke- Always try to be in a position that makes it easy to “Keep an eye on things”

2. Stay Present- Leave the luxury of getting carried away to relationships that have defined sets of parameters

3. Stay Hands on- Some women have attested to sustaining a constant ‘check’ by placing their hands in the appropriate places throughout the encounter thus ensuring the condom remains in place

Sex shouldn’t have to be so complicated but it does unfortunately have its downsides, so always be informed.