Guest Post: Stealthing — Interpreting through the Gaps of Consent

(This is a guest post by Dyuti Anand and Jai Agarwal)

On 7th October 2021, a Bill was made into law in California “whereby the non-consensual removal of condoms, commonly referred to as ‘stealthing’, has been included under ‘sexual battery’.”. Sexual battery could be characterized as an act done by a person to make offensive contact with an intimate body part of another, thus committing a sexual offence. There are no laws regarding stealthing in India. However, the Indian Penal Code 1860 (hereinafter “IPC”) deals with various provisions revolving around women’s modesty. The primary element of stealthing and of the provisions of IPC is consent. 

This article attempts to comprehend the position of consent in order to critically interpret stealthing. When the act for which consent is given is terminated, that consent is revoked. In the case of R v. Hutchinson (2014), Mr. Hutchinson poked holes in the condom to get his partner pregnant. However, the partner had only consented to protected intercourse, unprotected intercourse vitiated her consent. This understanding presses the need to incorporate affirmative consent which takes into account the subjective experiences as well as ensures sexual autonomy. Affirmative consent is an informed and voluntary agreement to a sexual activity which must be clearly demonstrated through words. 

The article is three pronged. The first prong addresses the role played by consent in stealthing and its implications. It further delves into the facets of affirmative and conditional consent. The second prong attempts to take the global practices as a precedent towards interpreting stealthing. Finally, the third prong further deals with the idea of the vitiation of consent by fraud in the Indian context, followed by a conclusion. 

[It is preliminarily clarified that the primary focus of the article is on the heteronormative interpretation of consent due to the restrictive language of Section 375. The authors fully recognize that the issue of stealthing largely affects the LGBTQIA+ community.] 

Placing Consent

The issue of stealthing gained academic prominence after the publication of a 2017 paper by Alexandra Brodsky titled ‘Rape-adjacent’. Stealthing negates consent at the immediate moment of the commencement of unprotected intercourse. According to Brodsky, herein consent is vitiated in two ways. Firstly, in the literal way, as one person has only consented for protected intercourse and secondly, in a risk-inherent way, that one person only consented being aware of the risks involved. The idea here is that had the person been aware of it not being protected intercourse, their affirmation to the act could be different. This highlights the implicit existence of conditional consent. Conditional consent means that consent is given on the basis of certain conditions. If those conditions are not met, consent is deemed to be revoked.

In India, there is no legal provision that deals with stealthing. However, a surface reading of Section 375 of the IPC gives an apparent idea of consent which could be used to gain an insight into stealthing. The issue of consent remains central to the crime of rape. Explanation 2 of Section 375 defines consent as “an unequivocal voluntary agreement when the woman, by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.” Thereby, consent can be understood to simply mean an explicit ‘yes’. Section 90 of the IPC defines consent in a cursory manner which leaves out inherent subjectivities of the very act. However, it is essential to lay down what does not constitute consent in a manner that it takes into account the subjective experiences.

Understanding the interplay of consent requires us to take into account the social-gender hierarchies existent in the society. In a country where sexual intercourse is looked at from a male perspective, it is impractical to situate female autonomy over their own bodies. It is essential to formulate the definition of rape in a manner that it asserts central importance to consent. Women are aware that they can say no, however, it is the agency that they lack. Agency and autonomy can be ensured by explicitly laying out what does not constitute consent. In the case of Mahmood Farooqui v. NCT of Delhi (2017), the woman’s feeble no was interpreted to mean yes by the courts. The Court was of the opinion that the unwillingness of the prosecutrix was not communicated in her actions. Moreover, the Court said “instances of women behaviour are not unknown where a feeble no would constitute yes.” This necessitates the need to incorporate subjectivity and hence the affirmative standards of consent. A feeble no, though feeble is still a no. It cannot be redefined to mean consent or yes. The prosecutrix was aware that she could say no, she did that as well, however, her no was interpreted to mean yes because of the lack of agency and sexual autonomy that women have. A feeble no is a no, absence of no is a no, silence is no, hesitation is no. The only interpretation to consent is an express verbal yes given out of a person’s own volition. 

Subjectivity of experiences can be incorporated if affirmative consent is given specific importance. The oppressive meaning that has been given to consent must be deconstructed. If a woman has consented to intercourse with condom, the instance the condom is removed without her consent, the act must amount to rape. Affirmative consent gives agency and empowers women despite the implicit presence of power dynamics. Such dynamics lead to a presupposition of consent based on the relationship. Affirmative standards ensure that consent cannot be presumed instead, it must be procured. Centuries of oppression has subjected women to a disempowered position in society. As a consequence of this, their lived and subjective experiences hold no value. The law must give due regard to the disempowered position of women and existing power dynamics in sexual relationships.

Conditional consent can be understood to mean that ‘true consent’ exists only when the conditions upon which that consent was based are met. Thus, affirmative consent may help us only to better answer the existence of consent for an intercourse but conditional consent takes it forward to fill its apparent gap. The gap being that this very consent was given for a particular way of intercourse that should be narrowly understood to mean protected intercourse. The instance this way is done away with, consent is revoked.

The act of stealthing finds its roots in male entitlement and the thrill of degradation. There exists a loosely connected network of blogs, websites, and forums that revolve around the ideas of male chauvinism. Upon a deeper dive, it can be found that these networks exhort acts like stealthing under the garb of masculinity and natural sex. Stealthing affirms the notion that men have sexual entitlement to women for intercourse. It further perpetuates the ideas of violence and non-consensual intercourse in the name of fantasies.

Consent & Stealthing: Round the Globe

Even though it is an issue that plagues us from time, the recent legal developments around it have shaped its discourse around the world. The case of Hutchinson from Canada is one of the earliest additions to the discussion where a man poked holes in the condom and told the woman about it later. The Supreme Court convicted him of sexual assault by observing that the sabotaging of condoms fundamentally altered the nature of sexual activity in question and concluded that the consent was vitiated by reason of fraud. This implied understanding for application of conditional consent is the fundamental position of this article.

In Swiss case of Assange, it was observed that deception about protection would vitiate the consent and thus, the accused was convicted. New Zealand and Germany have also held convictions for the act of stealthing. Australia, this year, saw a huge demand for a legislation on stealthing. In the United States itself, there are pending legislations for stealthing in the States of New York and Wisconsin.

Vitiation of consent by fraud?

In the above section, we discussed the concept of conditional consent as adduced from the case of Hutchinson. The Court in this case held consent to be vitiated by the reasons of “fraud” as the other person was deceived into an act for which she did not consent to. Section 90 of the IPC mentions that it is not a valid consent when given under “misconception of fact”. In this section, we locate this rationale of fraud being present in the Indian jurisprudence and then extend it for the act of stealthing. 

There is a unique and concurrent fact situation in India where consent to sexual intercourse is given under the pretext of promise to marry, which is not fulfilled subsequently. The question of it being characterized as ‘rape’ has come before the Supreme Court of India on multiple occasions. Notably, in the case of Pramod Suryabhan Pawar v. State of Maharashtra (2019), the Supreme Court extending upon its earlier decisions, held that for it to be considered under Section 90 and Section 375, the promise to marry must be a false promise given in bad faith with no intention of being adhered to, and the consequent sexual act must have a direct nexus to this false promise. It has been consistently held by the Court that cases like these cannot come under a straitjacket formula and can only be decided on a case-to-case basis. 

Therefore, we observe that the understanding of vitiation of consent for the reasons of misconception of fact is already existent in the Indian jurisprudence. This can be applied to stealthing using the premise of conditional consent. Stealthing, as understood from the lens of conditional consent, thus, must be read into Section 90 and Section 375 to categorize it under rape. 

The Way Ahead

The primary element in identifying stealthing as an offence is incorporating affirmative consent to give gravity to the subjective experiences. As can be ascertained from the examples spanning across jurisdictions round the globe, stealthing must be categorized as an offence. The primary understanding that should be grounded in the interpretation of consent is one that upholds the principles of affirmative and conditional consent. 

Professor Mrinal Satish in Discretion, Discrimination and the Rule of Law (2016) writes that stealthing should amount to rape on the basis of conditional consent. Section 90 defines consent, negatively, in the sense that it does not include misconception of fact. While Section 375 secondlycategorizes an act to be rape when done “without her consent.” Therefore, the authors believe that stealthing should be read under Section 375 to be characterized as rape.