Unavailability of law reforms in India vis-à-vis stealthing

Despite new laws and reforms, there are 22,172 reported rape cases in 2021 so far. Sexual Violence in any form is the worst kind of physical assault that a woman goes through. More than 160 years since the emergence of the Indian Penal Code (IPC), no law recognizes 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 consent from his partner. This trend or practice of sexual intercourse exposes victims vulnerable to unwanted pregnancy or sexually transmitted infections (STI) which is a grave violation of women's dignity.

The removal of condoms may be interpreted in transforming consenting sex into non-consensual sex or sexual violence in two ways. The article discusses a new way of dealing with non-consensual offences and in this way attempts to provide victims with a more viable cause of action and to better reflect the harms brought by those offences.

There is no established jurisprudence in the world for stealthing to have a precedent. Nevertheless, in one way or another, courts of several countries have addressed the matter.

The Supreme Court of Canada has classified stealthing as rape. In this way Canada has become one of the first countries to define the term. The Canadian court ruled that the man is guilty of rape for making holes in the condom without the other partner’s prior consent. The court broadly interpreted the concept of consent and held that consent given as a result of a misrepresented identity is not consent. Therefore the tearing and removal of protection without the prior consent of the victim falls under the ambit of rape.

Similarly the Supreme Court of the United Kingdom ruled that the NCCR falls under the ambit of rape and established the doctrine of ‘conditional consent’.

However, the Swiss courts brought the offence of stealthing under the definition of defilement and not rape.

Recently, a German High Court in Schwesig held that stealthing would be considered rape, on the grounds that while a sexual relationship was consensual, removing condom would amount to non-consensual activity and so such an act would amount to rape.

The legal implications of NCCR are currently unclear in India. The position of consent will play a vital role in defining the offence of NCCR in India. Consent of partners is the cornerstone of sexual activity. The availability of legal remedies for NCCR depends on whether removal of condoms vitiates consent to the continued intercourse.

Indian rape laws are ambiguous in situations where sexual activities take place in violation of consent of a partner. This ambiguity empowers the powerful and acts against the victims. There are many India cases, where one of the parties revoked their consent during sex but due to lack of judicial precedents remained undecided. Therefore unsurprisingly, the act of stealthing remains unaddressed in India.

Section 375 of the IPC emphasises the importance of consent in 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. However, unknown to the companion or without the consent of such companion, if the male partner removes the condom in the middle of the sexual activity, then the non-consenting companion reserves the right to say “no”. Moreover, the law is quite clear. Providing consent to sexual activity once doesn’t mean consent to all future sexual activities. Therefore, the act of ‘removal of condom’ would fall within the non-consensual ambit of as rape.

The 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. Therefore consent of NCCR victims is only limited to protected sexual intercourse and any activity post removal of the protection of condom should require a separate consent of the other companion.

Moreover, stealthing attracts different risks, namely associated with unprotected sex. The removal of condom changes the sexual act into a separate act and heightens the pregnancy risk and contraction of STI. In the case of Barbara A. v. John G. 145 Cal. App. 3d 573, the Court of Appeals of California determined that the man had committed violence because his partner agreed to intercourse on his false representation of being infertile. The court, held that the act of impregnation exceeded the scope of the consent and transformed the act to battery.

Therefore, it appears that in addition to recourse under criminal law jurisprudence the affected party can also resort to remedies available under laws of tort and contract.

Several countries have criminalized the transmission of an STI and held it to be negligence per se under tort law. These STI infections 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. 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.

In addition to pregnancy and SITs, the NCCR victims complained of a betrayal of confidence, which violated their dignity. 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 refused 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 the case of Marvin v. Marvin 18 Cal. 3d 665, 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.”

So, from a contracts law perspective it is interesting to note that, in the case of non-consensual removal of condoms, it is not the agreement per se that plays a key role in establishing the presence or absence of consent. Ethics and standards of morals of human conduct seem to play a larger role in establishing the presence or absence of consent.

With the Indian legal strata and jurisprudence concentrating mostly on rights in rem, the primary jurisprudential measure against stealthing should also be mirrored in criminal law. For the reasons highlighted in the previous sections, it is important to bring reforms in the criminal justice system to readdress new forms of crimes such as stealthing.

Legislators must focus their attention on these current and critical issues, as they will alter India's legal interpretation of consent. This will further pave way for more reforms, in the area of rape laws.

Non-consensual removal of condoms is disregarded by law and constitutes a damaging type of sexual assault, typically based on gender. In its finest way, a new Indian legislation should provide remedy to the explicit harm caused to the victims of such an offence.

The authors, Aviral Shrivastava and Ritvik Chouhan, are third year B.A. LL.B students at Institute of Law, Nirma University, Ahmedabad.