Stealthing is the intentional removing of a condom during sexual intercourse without the consent of the sexual partner. The offence is an example of ‘conditional consent’; a non-consensual act against the conditions of consent given.
In 2019, Lee Hogben from Bournemouth was sentenced to 12 years in prison for raping a woman in a hotel. Although consent for sexual intercourse was given by the victim, it was on the condition that a condom was used. The victim was a sex worker and not only were the terms of ‘conditional consent‘ for intercourse agreed upon beforehand, but they were also clearly stated on her website. Mr Hogben removed the condom being used during sex without the victim’s consent, an act known as stealthing.
What is Stealthing?
Stealthing is the act of removing a condom during sex without the consent of the other person. The removal of a condom when a sexual partner has only agreed to condom-protected sex is a non-consensual act. It can mean the victim is unknowingly open to sexually transmitted infections or diseases, or unwanted pregnancies.
Stealthing falls under the developing legal concept of ‘conditional consent’ and is recognised by the Crown Prosecution Service (CPS) as being an example of the concept.
Can Only Men Perform Stealthing?
In short no. Stealthing is usually defined as the removal of ‘condom’ during sex without consent, an act which can be performed by a sexual partner of any gender.
Some widen the definition of the slang term ‘stealthing’ to include any agreed protection during sex. For example, female contraception (including IUD, diaphragm/female condoms). Stating that you are on contraception (e.g. the pill, implant, injection) when you are not would still be an issue of conditional consent not covered by the term ‘stealthing’.
The removal of any agreed protection/contraception during intercourse may make the act of sex non-consensual and raise the issue of conditional consent.
What is conditional consent?
Conditional Consent is when consent is given under imposed conditions. If an act falls outside of the given conditions, then the act is non-consensual and goes against the consent given.
The Sexual Offences Act 2003, at Section 74, requires that a person ‘agree by choice, and has the freedom and capacity to make that choice’.
Under UK law consent is specific and is required for each sexual act. In some situations it can be argued that by lying or deceitful action a person can deprive someone of making a full and free choice. For example, by removing a condom without consent or knowledge, the individual deprives the person from making a choice. The person may not have consented to the sexual encounter if they had been aware of the full facts.
In English and Welsh law this is known as ‘conditional consent’ in sexual encounters.
Is Stealthing Rape in UK Law?
The act of stealthing can be considered rape under UK law. The non-consensual removal of a condom breaks the conditions that consent was given, and thus sexual intercourse becomes a non-consensual act.
If you are under investigation for ‘stealthing’, you are being investigated for rape. Contact our team of rape allegation solicitors for advice through our contact page here. Alternatively you can phone 0333 240 7373, or email us at info@reeds.co.uk.
Consent and the Sexual Offences Act 2003
Under section 74 of the Sexual Offences Act 2003, if the defendant:
- Intentionally deceived the complainant as to the purpose of the relevant act; or
- Induced the complainant to consent to the relevant act by impersonating someone else who was ‘personally known to the complainant’.
then it is understood that the complainant did not consent to a sexual act and the defendant did not believe the complainant consented. The statutory definition of consent laid down in section 74 was considered in several high-profile cases, including:
- Julian Assange v Swedish Prosecution Authority [2011] EWHC 2849 – the defendant removed the condom during intercourse.
- The Queen (on the app of F) v DPP [2013] EWHC 945 (Admin) – the defendant ejaculated inside the complainant’s vagina even though she had told him not to.
- R v Justine McNally [2013] EWCA Crim 1051 – gender deception or gender fraud.
In these cases it was argued that ostensible (apparent) consent was not true consent, either:
- because the accused deceived the complainant in a way that is not covered by section 74; or
- because the accused did not comply with a condition which the complainant imposed when they gave their consent.
The key points from the cases considering ostensible consent are:
- Ostensible consent must be given at a relevant time, normally at penetration.
- A deception (other than one that falls under section 74) or a condition of consent (such as the wearing of a condom) must be present.
- Although deception or a condition forms part of the context of whether consent was given it is not conclusive, other contexts must also be considered.
- A broad and common sense approach must be taken to the complainant’s “choice” and the “freedom” to make any particular choice.
- Section 74 was intended to give individuals personal sexual sovereignty and making consent subject to one or more conditions is an act that embodies that autonomy.
How can I defend a Stealthing or conditional consent case?
In these types of cases, context is extremely important. “We must counter the culture of ‘no means no’ by also recognising that ‘yes means yes'”. The CPS makes clear that:
“Not every case will amount to rape where a condom is not worn even though there was a prior agreement to use one. Prosecutors must consider the overall context in which the offence is alleged to have taken place and the extent to which the actions of the defendant negate the freedom to choose of the complainant or their sexual autonomy.”
Although the aforementioned rape conviction of Lee Hogben garnered much media attention, the fact that he continued to have sex with the victim despite her protests, assaulted her, and left without paying made it relatively easy for a jury to find him guilty. However, in most cases, stealthing is incredibly difficult to prove due to a lack of corroborative evidence or witnesses.
The Court of Appeal in R v Lawrance (Jason) [2020] EWCA Crim 971 examined the circumstances in which deception can violate ostensible/apparent consent. It concluded:
- Ostensible consent can be scuppered by deceptions narrowly interpreted as ‘closely connected’ to the nature or purpose of sexual intercourse. For example, stealthing negates consent as the removing of a condom alters the nature of the penetration.
- When it comes to how the deception is communicated, it makes no difference whether the defendant tells an explicit lie or omits to provide relevant information. The crux of the issue is whether or not the deception was connected closely enough to the sexual act.
Furthermore, there are practical evidential considerations, such as the fact that condoms can slip off and break making it even more difficult to prove to the criminal standard (beyond reasonable doubt) that deception occurred.
Final words
If you find yourself accused of stealthing you must take the matter seriously and contact a criminal defence solicitor. This is because if you are convicted of rape you will face a maximum sentence of life imprisonment.
Our solicitors understand the defences available in all types of sexual offences cases and will fully leverage these to protect your best interests.
If you have been arrested for stealthing or accused of any type of offence under the Sexual Offences Act 2003, our criminal law solicitors can help. Please get in touch through our contact page here.
Reeds Solicitors is an award winning and leading top-tier criminal defence firm. For legal advice and representation, please contact us through our contact page here. Alternatively you can phone 0333 240 7373, or email us at info@reeds.co.uk.
