Sex without a condom can end up behind bars – under certain circumstances. According to the Federal Court of Justice, it could be rape if someone secretly dispenses with the contraceptive or withdraws it. In reality, however, “stealing” cases are extremely difficult.
After sex, they felt used, paralyzed and cheated of their self-determination. When they understood what had happened to them, they immediately had themselves checked for illnesses, many victims report on internet forums and social networks. For some, this sexual intercourse haunted them for years, for them it was traumatic. Even though they agreed with him. “I’ve met this one-night stand several times,” Theresa reported in the WDR podcast “Intimate”. After one of those meetings, however, the contact ended abruptly. “How bad it was” what her sex partner had done, Theresa only realized later.
Because Theresa and the other victims agreed to the sex – but only with a condom. Protection from unwanted pregnancy and venereal diseases was a prerequisite for pleasure for them. Her sex partner alone decided that things would turn out differently.
We are talking about so-called stealthing. Translated, “stealth” means something like “cunning” or “secrecy”, which describes the core of the behavior: During sexual intercourse, the condom is – secretly – removed against the will of the partner. Last week, the Federal Court of Justice (BGH) dealt with “stealthing” for the first time. It confirmed the opinion of the Düsseldorf district court, which convicted an IT specialist of sexual assault after he only pretended to his sex partner that he was using a condom. What was particularly interesting, however, was the judgment of the Supreme Court: “Stealthing” can even be rape in certain cases.
The courts in Germany have been dealing with the secret removal of condoms for several years. In 2020, the criminal liability of this behavior prevailed for the first time in a higher court: At that time, the Berlin Court of Appeal confirmed the conviction of a federal police officer for sexual assault. The man had met a woman on the Internet – when it came to sex, she insisted on a condom. The then 38-year-old initially agreed. When changing positions, however, he took the opportunity and withdrew the contraceptive.
Just a few years ago, the man would not have been convicted of a sexual offense. Because the then 20-year-old victim agreed to have sex with him – the federal police officer was neither violent nor threatened her. The fact that he still ended up in the dock was made possible by the reform of sexual criminal law in 2016. The principle “No means no” has been an integral part of criminal law ever since. This means that violence is no longer required for sexual assault. It is sufficient that the perpetrator acts “against the apparent will of another person”.
For the judges from Berlin, this meant that a sexual partner can not only decide “whether sexual intercourse should take place at all, but also under what conditions”. After all, the decision whether to use a condom or not is such a prerequisite. Not only because it protects against unwanted pregnancies and illnesses, according to the court – also because it is an expression of the right to sexual self-determination.
Indeed, many victims describe the “stealthing” as an attack on their dignity. For most, the associated loss of trust is one of the worst consequences, as the US legal scholar Alexandra Brodsky wrote in a 2017 study. The experiences of the victims with whom the lawyer spoke were initially very different: while some of the respondents noticed the missing condom during intercourse, others only became aware of it later, for example during ejaculation. For most, however, Brodsky writes, the experience felt “rape-like.”
Now “Stealthing” cases in Germany could also be legally regarded as rape. That would make a huge difference in terms of the sentence: Where perpetrators have been charged with sexual assault with a maximum sentence of five years in prison, rape is punishable by up to 15 years in prison. But when does a “stealthing” case go from sexual assault to rape? The OHG left the question unanswered.
In criminal law, the principle applies that anyone who has sex with a person against their will is liable to prosecution for sexual assault. If this non-consensual sex is combined with sexual intercourse, i.e. penetration into the body, this regularly represents a particularly serious case of sexual assault, namely rape.
“Thus, all cases of stealthing would automatically be rape, since sex without a condom is not consensual,” says lawyer Alexander Stevens in an interview with ntv.de “Because when we talk about sexual intercourse without a condom, there is always logically a penetration into the body before.” The criminal lawyer sees this critically. Not because it would not be criminally relevant if someone simply removed the condom during sex. “But there’s another quality to rape where a person is forced to have sex.” Stevens therefore pleads for a separate – proportionate – fact for “stealthing”.
Whether it’s sexual abuse or rape, the real problem in prosecuting “stealing” cases lies elsewhere. Nowhere in the law is it written what constitutes an “opposing will” and when it is “identifiable”. Does the victim have to hesitate or even fight back? Did the accused have the opportunity to realize that he was doing something wrong? “The judges and prosecutors have to use their own life experience to try to imagine how this happened due to the very vague wording of sex crimes law,” explains Stevens, who specializes in sex crimes law. This makes the question of whether criminal behavior exists at all “very subjective”.
The testimonies before the court are therefore important. But there is another hurdle in the case of sexual offenses – so-called secret crimes: it is often one statement against another. “Most people don’t have onlookers during sex,” says Stevens. In the majority of cases, there are no witnesses, and evidence such as injuries or traces of sperm is rare or can be explained casually with the assertion that the sexual intercourse was consensual. The judges would therefore often not have much choice but to try to assess the truthfulness of the victim’s statement: how detailed is it? How constant are the memories? Are there contradictions?
In “stealthing” cases, even this possibility is no longer available, says Stevens and explains: “If the victim only has to say that a condom was suddenly removed in order to be punished, there is hardly any material left to analyze the statement.” It is also particularly easy for the accused to refute the allegation. The criminal lawyer gives an example: “What if he didn’t notice that the condom broke? Or if he at least claims so?”
A short moment is enough and hundreds of such justifications come to mind. Whether true or not, they sow doubts about the criminal liability of the accused. For Stevens, therefore, all “stealthing” cases should end in acquittal, after all, the most important rule of protection for the accused in court is: In dubio pro reo – in case of doubt for the accused.
It is different if the perpetrator – voluntarily or involuntarily – makes a confession. The aforementioned federal police officer admitted in a chat that he deliberately removed the condom. Some perpetrators also flaunt their behavior in online forums. It’s “especially cool” if she doesn’t notice anything, is just one of many entries. In reality, however, these are the fewest cases – convictions are therefore rare. “Most of the time, the case is dropped for lack of evidence,” says Stevens.
