The Legal Nature of Stealthing
This is an excerpt from shifu Jonathan Bluestein's book, 'Exceptional Ideas About Humanity'
I read an article in recent times, which discussed the proper punishment supposedly due for the act of ‘Stealthing’. In the process of sexual intercourse between one person and another, Stealthing refers to a situation wherein it was agreed that the penetrating party was to wear a condom, but at one point he had covertly removed that instrument, without the knowing or consent of the sexual partner being penetrated. In the article I read, it was argued that such an act should be considered and treated as ‘Rape’.
I have undergone my law studies in the State of Israel in the beginning of the 21st century. During that era, Israeli Criminal Law distinguished four grades of offenses, of rising severity, in the following order: Sin, Misdemeanor, Crime and Severe Crime.
In the context of sexual play, every reasonable layperson, as well as religious lore, approve of misconduct to be referred to as a ‘Sin’. Such a thing is never called ‘Misdemeanor’ or a ‘Crime’.
In terms of romantic involvement, what transpires in such cases is quite literally a ‘breach of trust’ between the partners. Again, in reference to Israeli Law, the concept of Breach of Trust as a criminal offense, exists only for public servants or people fulfilling a public duty. Breach of Trust between business or romantic partners, is a dispute of a personal nature, which at most may escalate to a civil lawsuit.
Moreover, that in the technical sense, unless the penetrated partner had gotten either pregnant or sick with a sexually-transmitted illness resulting from the mischief, then this act ought to fall under the category of a ‘victimless crime’. That is as, assuming the sexual act was consensual, the only ‘damage’ done would have been the feeling of emotional betrayal. I would not dare to negate the horrible ramifications that some people may experience as a result of emotional betrayal. However, it is not customary in Criminal Law that a person be persecuted for perpetrating such an ‘emotional crime’ against someone. Even in civil courts, seldom is accepted the claim for compensation for hurt feelings due to dishonesty.
I am anyhow of a school of thought which is generally against the criminal persecution of victimless crimes, but such more extensive debates fall outside of the scope of this particular discussion.
A scenario of this sort does raise two more exceptional possibilities, which are the prospect of pregnancy and the hazard of illness.
Wherein the act of stealthing has yielded a pregnancy, and the woman wishes to end it, then the frisky rascal ought to pay the costs for the medical proceedings, as well as compensation for the resulting grief and anguish. But if the woman rather wishes to keep the child, then his punishment should surely be the high toll of paying alimony for the next 18-21 years, appropriate to his wealth, which by itself can be worse than imprisonment, being at times a form of slavery – especially when the result was undesired. The common legal theme to both these types of narratives, is that they still fall within the scope of Civil Law, and not Criminal Law.
The only circumstances under which Criminal Law could be morally justified, are those with which the penetrated partner was infected with a communicable sexually-transmitted disease as a result of the stealthing act. Having done so while knowing of his own state of infection, the offense is that of Assault. Yet had he transmitted the disease without prior knowledge, we ought to determine that this had been an act of Criminal Negligence.
There are those who argue, that Stealthing is a form of Rape. Such is an unfortunate misunderstanding of the situation. Rape pertains to the idea of coerced sexual intimacy and intercourse (or related acts), which in the case of stealthing were consensual. Thus, a rape could not have been perpetrated. Within the greater scheme of the sexual act, which includes many elements, there had been a lesser violation of trust. Wherein that violation has yielded no real harm, as a victimless crime it ought at worse become a civil dispute. But had it graduated to the level of a criminal offense, via the transmission of disease, then it falls under the category of Assault, and not of Rape. That is, much like the medical treatment which leads one to be infected with a disease without their consent, is classified in Jurisprudence as Assault, and not as Rape.