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| - In February 2021, several news outlets reported that California Assembly Member Cristina Garcia had put forward legislation that, if passed, would make it illegal to remove a condom without consent, during sex.
On Feb. 9, for example, the Sacramento Bee published an article with the headline "Removing a condom without consent could lead to civil damages under California bill." The article stated that:
A California Democrat this week introduced legislation to penalize anyone found guilty of “stealthing,” or the sexual act of removing or damaging a condom without a partner’s consent. California’s civil code already includes sexual battery, or the “intent to cause a harmful or offensive contact” as a punishable violation.
Under Assembly Bill 453, the law would expand to include those who intentionally cause “contact between a penis, from which a condom has been removed, and the intimate part of another who did not verbally consent to the condom being removed.”
Similar articles were published by the Los Angeles Times and The Washington Post.
Those reports were accurate. Assembly Bill (AB) 453, would change California civil code to specify that "stealthing" — engaging in sexual contact involving a penis after unilaterally removing or damaging a condom without a sexual partner's consent — is included in the definition of sexual battery. The law would not introduce criminal penalties for stealthing, but it would leave perpetrators open to being sued for damages.
Analysis
Here's how the nonpartisan legislative counsel for the California Assembly has summarized AB 453, which Garcia introduced on Feb. 8, 2021:
Existing law provides that a person commits a sexual battery who, among other things, acts with the intent to cause a harmful or offensive contact, as defined, with an intimate part, as defined, of another that directly or indirectly results in a sexually offensive contact with that person. The law makes a person who commits a sexual battery pursuant to those provisions liable for damages and equitable relief. This bill would additionally provide that a person commits a sexual battery who causes contact between a penis, from which a condom has been removed, and the intimate part of another who did not verbally consent to the condom being removed.
That existing law is Section 1708.5 of the California Civil Code, which can be found here. Among other provisions, Section 1708.5 stipulates that sexual battery takes place when a person:
(1) Acts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results.
(2) Acts with the intent to cause a harmful or offensive contact with another by use of his or her intimate part, and a sexually offensive contact with that person directly or indirectly results.
Section 1708.5 also sets out the possible consequences for sexual battery, as follows:
"A person who commits a sexual battery upon another is liable to that person for damages, including, but not limited to, general damages, special damages, and punitive damages."
Finally, Section 1708.5 defines "offensive contact" as "contact that offends a reasonable sense of personal dignity," and defines "intimate part" as "the sexual organ, anus, groin, or buttocks of any person, or the breast of a female."
Garcia's legislation, AB 453, would change that existing law in the following ways:
- Adds a new paragraph, including the following as an instance in which a person commits sexual battery: "Causes contact between a penis, from which a condom has been removed, and the intimate part of another who did not verbally consent to the condom being removed."
- Replaces "by use of his or her intimate part" with the gender-neutral alternative "by use of the person's intimate part."
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