Despite consent, the sexual act can ultimately end in the courtroom: anyone who secretly omits the condom during sexual intercourse is liable to prosecution, the BGH decided in a detailed decision. It is the first time that the Supreme Court has ruled on so-called “stealing”.
Consensual sex can become a crime if the condom is secretly omitted or removed against the will of the partner. The Federal Court of Justice (BGH) stated this in a recent decision and thus for the first time commented in detail on the phenomenon of “stealthing”. Men pretend that their sex partner is using a condom that is not actually there.
In this specific case, an IT specialist took a condom out of the packaging in his bedroom and pretended to use it. The woman turned around and therefore didn’t see that he hadn’t put it on after all. But unprotected sex would have been out of the question for her, she later credibly testified.
The Düsseldorf district court rightly classified this as sexual assault, the BGH found. It also doesn’t matter that the woman had unprotected oral sex with the man immediately beforehand. A BGH spokesman explained that a conviction for rape would even have come into question.
The Federal Court of Justice nevertheless reversed the judgment of the district court, but because of a formal error elsewhere: the district court failed to give the man the necessary legal information. The regional court had sentenced the intensive user of dating portals to three years in prison for several sexual offences. Now the case has to be renegotiated in Düsseldorf.
