By Shubham Gupta
Introduction
Recently, in the episode of BBC’s daily soap “I may destroy you” an unknown phenomenon was highlighted where Arabella (Michaela Coel) slept with a man who out of fun removed the condom in the middle of the sexual intercourse. The serial though highlighted such new apprehension of sexual consent, later diluted this concern by the protagonist’s casual reaction.[1] Since then, a debate is going on in Britain about stealthing on moral and legal grounds. Stealthing is a newly discussed act which has emerged in a sexual relationship that involves the removal of condom in the middle of a sexual intercourse without the consent of another partner. As a consequence, the partner who has consented to protected sexual intercourse might be exposed to chances of “unwanted pregnancy and sexually transmitted diseases”.[2] It is a regular phenomenon which occurs frequently and the victims are afraid to talk about it because of the unawareness of its illegality and the fear that it will be treated as a trivial issue by society.[3]
According to a study done in 2017 named “Rape- Adjacent” by law graduates of Yale in Gender and Law Journal of Columbia it was provided that “men often remove their condoms for increased sexual pleasure or to ascertain masculinity”.[4] In addition to the quest of sexual pleasure, it has also been reported that the “thrill of degradation,” along with the belief that they have the “right to spread their seed,” is one of the major reasons of such an activity.[5] Most of the men believe that when consent is received from women. they can indulge in any kind of sexual activity with the women as they please.[6] This issue gets amplified in a country like India, where the use of condoms in itself is very unpopular[7], men do not consider it as a crime to remove condoms in the middle of the sexual intercourse for the sake of their pleasure.[8] The root cause of the problem can be traced to the male ego which is marinated in dominance and patriarchy. The statistics provided by the National Family Health Survey provide that 94% of the men population are aware of the use of condoms, but still less than 5% of the male population use it.[9] Hence, the ongoing dominance of the Indian man makes it a farfetched thought to equate stealthing with the crime of rape or sexual assault in the country.
Mrinal Satish, a professor who was involved in shaping the Rape laws of India in the 2013 Amendment believes that stealthing should technically come under the definition of rape.[10] He additionally has put forth that whenever the consent is conditional, the sexual act should be confined to such conditions.[11] This is similar to what is stated by Brodsky in her article “Rape-adjacent: Imagining legal responses to non-consensual condom removal” that “being duped into engaging in condomless sex falls within the arena of sexual offences and is akin to rape”.[12] The author believes on the similar lines that stealthing is like other cases of rape where it is predominantly about the perpetrator experiencing a feeling of power. It is non-consensual, deceptive and exploitation of boundaries. This activity immediately turns the switch from consensual sex to non-consensual sex, which amount to rape. It is not only a threat to the body, but also destructs the dignity of the other person. In India, no case has ever reported of stealthing and hence there are no judicial elaboration, legal precedent and statistical research in this matter and therefore,its criminal liability is ambiguous.
In this article, the author intends to provide an overview of the approach adopted by the western counterparts about stealthing. Furthermore, it has been highlighted that technically stealthing comes under the definition of rape in India. Additionally, the author has done a briefly exhaustive comparison of the laws of Canada with India to conclude why India should adopt the approach of Canada in interpreting stealthing. Lastly, the author has provided suggestions regarding judicial actions and constitutionality of stealthing.
Global Approach
The term stealthing was invented by the people belonging to the LBGTIQ+ community and originated from the USA in the year 2014. This practice was brought into light by the LGBTIQ+ community because of the rise in the ongoing trend of “gifting” HIV by the positive partner to the negative partner without his or her consent and knowledge.[13] Countries around the globe have their own interpretation and parameters to bring such an activity under the ambit of a criminal offence.
Unlike India where stealthing is not clearly defined under the ambit of laws, Canada was one of the initial countries to bring stealthing under the definition of rape. The Supreme Court of Canada in the case of R v Hutchinson [14] held a man guilty of rape for creating holes in the condom without the consent or knowledge of the other partner. The case gave a broad interpretation of the definition of rape and included tearing, tampering and removal of condoms without consent and knowledge of the victim under its ambit. In comparison, the approach adopted by Switzerland dilutes the interpretation of the crime, as the criminal court of Switzerland recognised it as a rape yet the higher court brought it under the definition of defilement and not rape.[15] Similarly, the approach of Germany concerning stealthing is a bit similar like Switzerland and they considered it as sexual assault and not rape.[16] The reason provided by the Swiss & German courts in taking such an approach was that although the act of stealthing is non-consensual yet the sexual intercourse was consensual.[17] The German Legislation altogether adopts a different approach in the rape cases as before 2016, the person was held liable for rape only if there were physical resisted attacks on the perpetrator by the victim.[18]
Legal Perspective
Indian law is challenged of not recognising different forms of rape which do not fall under its limited definition provided under Section 375 of Indian Penal Code.[19] Although there is no explicit mention of Stealthing in the code yet the explanation provided to the Section 375[20] clearly states that “A woman’s consent to sexual intercourse includes unequivocal voluntary agreement or willingness to participate in the specific sexual act by words, gestures or any form of verbal or non-verbal communication.” When a promise is done by the man to wear a condom in the course of sexual activity, he has obtained consent for that specific sexual act. If midway in the act he removes the condom without the knowledge or consent of the partner then the right to say “no” given to the partner is effectively disregarded. Hence the section within the scope of its explanation can bring this act of ‘removal of condom’ under the definition of rape.
The argument which can be put forth by the victim in such cases is that they consented to sexual intercourse with the condom and not with the penis. Thus removal of a condom without the consent and knowledge of the victim automatically concludes that there was no consent for such sexual intercourse. The section mentions the insertion of objects and other body parts in the vagina or any other part of women as rape.[21] The Criminal Law Amendment Act of 2013 explicitly mentions and differentiates between different types of penetration in order to broaden the strata of the definition of rape.[22] This means the section recognises and differentiates various kinds of penetrations. Hence it could be said that consent to penetration does not mean all forms of penetrations and hence justifies why stealthing should amount to rape.
The author believes that India should follow the strict approach adopted by Canada while designating the activity of stealthing as rape because of the similarity of terminologies mentioned in penal codes of both the countries. Section 273.1(1) of the Criminal Code of Canada has defined consent to be confined to the sexual activity in question.[23] As highlighted above, it is mentioned in the explanation of Section 375 of the Indian Penal Code.[24] Additionally, the case of stealthing was brought under the purview of rape by the Canadian Supreme Court because the consent of sexual intercourse was construed to be vitiated by fraud under Section 265(3).[25] Similar interpretation was undertaken by the Supreme Court of India to Section 375 (secondly) which mentions “without her consent” that any consent which is granted by the victim in any false impression created by the perpetrator is no consent.[26] The factor of the patriarchal element in both societies forces the government to make stringent laws.[27] Additionally, there is an increase of Indian Culture in Canada as many Indian immigrants are settling in Canada since the 1970s.[28] These people although change their countries but our ferociously clung to the patriarchy and customs.[29] Lastly, both the countries have multi-cultural societies which are influenced by its democratic government leading to clashes among various cultures igniting hatred and increasing crimes like rape.[30]Hence, because of the social and legal similarities in both the countries, India should hold these cases of manipulation of consent which is a basic and most important requisite of sexual intercourse no less than rape.
The author accepts the fact that there are no explicit provisions to charge a culprit of stealthing yet the fact that such removal of condom midway of the sexual act violates the personal agency and dignity of the victim cannot be ignored. It violates the autonomy of one’s body and hence strikes Article 21 of the Indian Constitution.[31] The Supreme Court has mentioned that “rape is not a mere violation of statutory rights but is also a violation of a fundamental right of Article 21 provided to every citizen in the country”.[32] The apex court furthered elaborated that every person has the right to bodily integrity as per the above-mentioned article which is sacrificed in the cases of rape.[33] Hence the Supreme Court took a step for mitigating such evil by considering rape done by public functionaries as a violation of Article 21.[34] This translates to the fact that any kind of rape is an invasion of the private personal and inner space of one’s body. Failure of recognising the victim’s ability to withdraw her consent to any kind of sexual intercourse denies autonomy and dignity to that person under the law. The mentioned Article clearly provides “Right to life with dignity” and such bodily autonomy is a clear compromise of the dignity of the victim. Hence, it can be concluded that stealthing is the violation of Article 21[35]and thus should be considered no less than rape.
In the era of dynamism when it is not possible for the legislation to include everything in the laws it becomes the duty of the judiciary to take steps by giving a dynamic interpretation to the existing laws. Although the Indian Judiciary has always done a commendable job in giving life to the obsolete statute,s yet it is observed that the judiciary lacks in interpreting statutes pertaining to sexual crimes due to absence of sensitisation.[36] Most of the judges are not aware of how to treat and have a conversation with the victims of rape and sexual abuse. The insensitivity of the judges coupled with the long trials makes the situation miserable for the victim.[37] This is the root cause of why the cases on sexual offences go unreported in India. Hence, during judicial training , judges should be specially trained to handle such situations and should be made to understand the plight of the victim before giving any decision.
Concluding Remarks
Stealthing might be a recently known phenomenon but is something prevalent across society for a long time. The notions which run in our country regarding sexual offences suppress the voice of the women and give power to the perpetrators. All the above-mentioned cases of different jurisdictions are “first of its kind” and have tried to give a reasonable interpretation to the existing regimes. The judiciary functions on the principle of lawfulness and not the righteousness which makes the judiciary bound to follow or interpret the existing law. Unfortunately, because of the absence of any set standard, legal complications are bound to occur. Therefore it is the duty of the judiciary to take actions by reasonable application of laws and also by taking into consideration the views of its citizens and accordingly punish the culprit and support the victim. The author further believes that sex education should be introduced as a mandatory subject in all the schools to reduce the hoax among the masses regarding sexual activities. A woman whose rights are violated resists reporting because of the additional societal trauma she will have to go through. Additionally, because of a lack of clear picture regarding the illegality of activities like stealthing, the victim is always unsure whether she should come out and speak about her trauma. Such activities of manipulation of consent appear to be very trivial to most of the population of the country and hence unless its legal sanctions will be explicitly articulated the cases of such breach will go unreported. Lastly, the government should start various literary programmes to educate women about their rights and should support them to report cases of sexual assault and rape without the fear of society and judicial system.
The author, Shubham Gupta, is currently a law student at the National Law University, Odisha.
[1]Katie Strick, TV’s Michaela Coel has exposed a new type of sex assault – stealthing, Evening Standard, available at https://www.standard.co.uk/comment/sex-assault-stealthing-tv-drama-a4471671.html, last seen on 14/07/2020.
[2]What Are the Real Risks of Condomless Sex? What Everyone Should Know, Healthline, available at https://www.healthline.com/health/hiv/risks-sex-without-condoms#:~:text=The%20takeaway,every%20time%20you%20have%20sex., last seen on 14/07/2020.
[3]Theja Ram, Why ‘stealthing’ – removing condoms during sex without consent – amounts to rape, The News Minute, available at https://www.thenewsminute.com/article/why-stealthing-removing-condoms-during-sex-without-consent-amounts-rape-89731, last seen on 14/07/2020.
[4]Alexandra Brodsky, Rape-Adjacent: Imagining Legal Responses to Nonconsensual Condom Removal, Columbia Journal of Gender and Law, Vol. 32, No. 2 (2017) available at
https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2963386_code1875288.pdf?abstractid=2954726&mirid=1 last seen on 06/07/2020.
[5]Elle Team, What You Need To Know About ‘Stealthing’ Introducing 2017’s most disturbing new sex phenomenon, Elle Australia, available at https://www.elle.com.au/culture/what-you-need-to-know-about-stealthing-8345, last seen on 14/07/2020.
[6] Peggy Orenstein, It’s Not That Men Don’t Know What Consent Is, The New York Times, available at https://www.nytimes.com/2019/02/23/opinion/sunday/sexual-consent-college.html, last seen 14/07/2020.
[7]PathikritSanyal, Durex says 95 percent Indians don’t use condoms. Really?, daily O, available at
https://www.dailyo.in/variety/condoms-safe-sex-sexual-health-reproductive-rights-contraceptives/story/1/22669.html, last seen on 14/07/2020.
[8]MukeshRawat, Indian men have a problem, they hate condoms. This is what it results in, India Today, available athttps://www.indiatoday.in/india/story/indian-men-have-a-problem-they-hate-condoms-this-is-what-it-results-in-1566806-2019-07-11, last seen on 14/07/2020.
[9] Ministry of Health and Family Welfare, National Family Health Survey, available at http://www.indiaenvironmentportal.org.in/files/file/national%20family%20health%20survey%20-%20India%20fact%20sheet.pdf, last seen on 14/07/2020.
[10]Devrupa Rakshit, What Is Stealthing And Why Isn’t It Illegal Yet In India?, The Swaddle, available at https://theswaddle.com/what-is-stealthing-and-why-isnt-it-illegal-yet-in-india/#:~:text=%E2%80%9CThe%20law%20in%20India%20deals,we%20aren’t%20there%20yet, last seen on 14/07/2020.
[11]Ibid.
[12] Supra 2.
[13] Hugh Klein, Generationing, Stealthing, and Gift Giving: The Intentional Transmission of HIV by HIV-Positive Men to their HIV-Negative Sex Partners, 2(3) Health Psychology Research, (2014) available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4768590/, last seen on 14/07/2020.
[14]R. v. Hutchinson, [2014] 1 SCR 346,35176 (Supreme Court of Canada).
[15]World News, Reuters (Zurich), available at https://www.reuters.com/article/us-swiss-stealthing/swiss-court-upholds-sentence-in-stealthing-condom-case-idUSKBN1851UN, last seen on 06/072020.
[16]Matthew Robinson, Police officer found guilty of condom ‘stealthing’ in landmark trial, CNN, https://edition.cnn.com/2018/12/20/health/stealthing-germany-sexual-assault-scli-intl/index.html, last seen on 06/072020.
[17] Ibid.
[18] Ibid.
[19] S.375, The Indian Penal Code,1960.
[20] S. 375 (Explanation)(2), The Indian Penal Code,1960.
[21] S. 375 (b), The Indian Penal Code,1960.
[22] Committee on Criminal Law, LokSabha, The Criminal Law (Amendment) Bill, 2010.
[23] S.273.1(1), Criminal Code of Canada,1985
[24] Supra 15.
[25] S.265(3), Criminal Code of Canada,1985
[26]Deelip Singh@ Dilip Kumar v. State Of Bihar, (2005) 1 SCC 8.
[27] Douglas Todd, Is Canada importing patriarchy?, Vancouver Sun, available at https://vancouversun.com/news/staff-blogs/is-canada-importing-patriarchy, last seen on 19/07/2020.
[28] Immigiration.ca, 225,000 Indians Could Move to Canada by 2021. Will You Be One of Them?, available at https://www.immigration.ca/225000-indians-could-move-to-canada-by-2021-will-you-be-one-of-them#:~:text=In%20the%20first%2010%20months,citizens%2C%20or%2022%20per%20cent.&text=The%20percentage%20of%20Indians%20becoming,indicating%20a%20sharp%20upwards%20trend., last seen on 19/07/2020.
[29]Afsun Qureshi, How India’s rape culture came to Canada, National Post, available at https://nationalpost.com/opinion/afsun-qureshi-how-indias-rape-culture-came-to-canada, last seen on 19/07/2020.
[30] Sikka, Sonia, Multiculturalism and Religious Identity: Canada and India, McGill-Queen’s University Press, 2014, available at https://www.jstor.org/stable/j.ctt7zsz9c last seen on 19/07/2020.
[31] Art.21, the Constitution of India
[32]The Chairman, Railway Board &Ors v. Mrs.Chandrima Das, (2000) 2 SCC 465.
[33] Ibid.
[34]Ibid.
[35] Supra 24.
[36]Divya Srinivasan, India’s Criminal Justice System is Failing Victims of Sexual Violence, Inter Press Service, available at http://www.ipsnews.net/2019/06/indias-criminal-justice-system-failing-victims-sexual-violence/, last seen on 14/07/2020.
[37]Flavia Agnes, For a victim-centric approach, The Hindu, available at https://www.thehindu.com/opinion/lead/for-a-victimcentric-approach/article6420007.ece, last seen on 14/07/2020.
The Journal of Indian Law and Society 