Removing condom without consent would be classified as sexual battery under California bill

The nonconsensual removal of a condom during sexual intercourse would be an act of sexual battery under a bill introduced Monday by Assemblywoman Cristina Garcia (D-Bell Gardens).

California’s Civil Code currently characterizes sexual battery as someone who acts with the intent to cause a harmful or offensive contact with an intimate body part of another, and as a result, commits a sexually offensive act. The perpetrator is liable for damages.

The bill, AB 453, would add a provision that says a person commits sexual battery if they 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.”

Experts say there are currently no civil or penal codes nationwide that define “stealthing,” as the practice is known, as a crime.

“It’s been going on for awhile. There’s blogs online that are helping individuals, teaching them how to get away with this,” Garcia told The Times, referring to the act of tampering with a condom. “We need to be able to call it what it is in order to be able to deter behavior.”

Garcia introduced bills in 2017 and 2018 that would have made stealthing a crime under the state’s penal code. The bills did not move forward because of concerns that they would increase the prison population, according to the assemblywoman’s office.

While Garcia was a leader of the #MeToo movement in the state Legislature and a vocal critic of male colleagues accused of inappropriate behavior, she has also faced accusations of sexual misconduct.

In 2018, she took a three-month voluntary leave of absence during an investigation into a complaint by Daniel Fierro, a former legislative staffer, who accused her of inappropriately touching him during a charity softball game four years before.

An Assembly investigation did not substantiate Fierro’s claim. Further investigation found that she had acted in an “overly familiar” manner at the softball game and that she had engaged in conduct that violated the Assembly’s policy against sexual harassment. But “a preponderance of the evidence did not support findings that Assemblymember Cristina Garcia touched Mr. Fierro on his buttock or genitals, or that this was a sexual encounter,” according to John T. Kennedy, a private attorney whose law firm represented the Assembly during the investigation.

Carly Mee, an attorney with the Fierberg National Law Group who represents victims of sexual violence, applauded the new bill.

“This is an act that’s a violation of someone’s autonomy,” she said. “There’s the risk of pregnancy, there’s the risk of STIs, but also inherently it’s changing the entire nature of the sexual encounter.”

She said that a victim of stealthing might today attempt to pursue civil action by arguing it constitutes an assault, but the claim may be unlikely to succeed.

“Under the California bill, it would lay it out much more clearly that this is actually a violation, and someone can pursue damages from the perpetrator,” she said.

Elizabeth Jeglic, a psychology professor at John Jay College of Criminal Justice in New York City, said that stealthing can cause psychological trauma similar to that experienced by rape victims.

“A lot of women describe it to feelings of experiencing rape,” she said. “It violates the trust you had in your partner.”

Times staff writer Melanie Mason contributed to this report.