The offence of Stealthing: Removing the condom; the cloak and dagger way

Introduction

Rape, seen from the lens of limited understanding, is still one of the most debated aspects of law. Several legislations and recommendations later, the legislature and the Judiciary still find themselves struggling with the nuances of the offence. Rape, is a gendered offence and despite the recommendations by the Verma committee in 2013 to make it gender neutral, the legislation continues to hold it's allegiance to the Victorian morality followed by Lord Macaulay.

Not all offences of rape leave scars of brutality, some are committed within four walls, with almost no blots of guilt to trail behind. The most heinous offences of rape take years to be proved, with victims expected to verbatim narrate the harrowing tale. The society questions her morality, decency and her character, while forever putting a tag of "dishonor" on the family. The fear of being ostracized and isolated, the terror of standing and deposing in front of formidable Judges and the fright of loosing a future, halts a woman from knocking the Court doors.

Consent

The existing definitions of consent have muddied the waters and have left judiciary in a state of puzzle. A question that often crosses one's mind is whether consent can be revoked at any stage or not and whether every distinguished act requires a separate consent?

The Courts are at their wits end, trying to break down biology, legally.

Amidst the clamour surrounding consent, the offence of "stealthing" has caused an uproar across the globe.Stealthing is the offence committed when, during sexual intercourse the man removes his condom without the knowledge or consent of the woman.

The concept remains incomplete without the mention of Alexandra Brodsky, who through her paper "Imagining legal response to Non-consensual condom removal", caught the attention of people from all over the world.

She says that, "the practice of stealthing is an ethical wrong with practical, psychic and politically salient repercussions for it's victims."

The victims here, give their consent for sexual intercourse with protection, however, their consent is vitiated if without their knowledge, the man removes his condom.

The consent here is given knowing fully well the ‘nature of the act', but if the ‘nature' itself is changed without the knowledge of the victim, then the offence committed should fall under section 375 of Indian Penal Code.

Whether a woman's consent will be vitiated this stage or not depends on the factor, whether the consent is revocable or not during the continuance of the act.

International Recognition

Switzerland in 2017 upheld the conviction of a man who committed the offence of stealthing, by awarding him a sentence of 12 months. The court was of the opinion that the act did not amount to rape but was categorized as "defilement".In 2014, Canadian Supreme Court held a man guilty for making "holes in the condom without his partner's consent."Germany followed suit, holding a man guilty of "stealthing" in 2018 and so did Australia.

Conclusion 

The law on stealthing is still at a nascent stage, gradually evolving and spreading.

India has still not entered the phase of wrangling and the country has a long way to go.  

What we first need is an unambiguous definition of consent, and a clear vision of stronger legislation.