Verdict: Secretly taking off condom during sex is punishable by law
Anyone who removes the condom during sexual intercourse without the knowledge of the sex partner commits a sexual assault. This is now declared by the Berlin Court of Appeal, citing a 2018 trial in which a police officer was convicted for this practice, known as “stealthing.”
Stealthing meets elements of the crime of sexual assault
The Berlin Higher Regional Court was the first to declare so-called “stealthing,” the surreptitious removal of a condom during sex, a criminal offense. According to the ruling, it constitutes a sexual assault if the sexual partner “not only penetrates against his or her will in an unprotected manner, but also ejaculates into the body of the injured party in the further course of this unprotected sexual intercourse”. It remains legally unclear how to decide if ejaculation does not occur. Whether then also a criminal offense is present and if this should be so, how this is to be judged legally.
The judgment of the Higher Regional Court dates from July 27, 2020, but has only now been made public. It refers to a criminal case brought against a police officer, now 38 years old, who secretly pulled off the condom during sex with a female colleague and ejaculated into the young woman. The police trainee at the time had consented to the sexual intercourse only on condition that he protect himself with a condom. In the verdict of the Tiergarten District Court in December 2018, the police officer was given a suspended sentence of eight months for stealthing. He also had to pay damages for pain and suffering.
Stealthing is not rape
The court pointed out that the use of a condom not only served to protect against pregnancy and sexually transmitted diseases, but could also be part of sexual self-determination. In the reasons for the ruling, it is stated that sexual self-determination means “deciding on the time, type, form and partner of sexual activity at one’s own discretion”. And the fact that the man secretly took off the condom means that the young woman was subject to external control with regard to the form of the sexual act. Thus it concerns a criminal offense.
According to the court, however, there was no rape. However, only because it was legally not possible to change the verdict of guilt afterwards. However, it cannot be ruled out that so-called stealthing will be considered a particularly serious case and thus rape in individual cases in the future.
This is not least due to the reform of the Sexual Offenses Act in 2016. Since then, the principle “No means no” has applied. Violence and threats are therefore not prerequisites for rape, but merely a lack of consent to what happens during the sexual act. This also means: If sex with a condom was agreed upon, but the condom was secretly removed by the man during the act, it could well be rape.
A nasty scam that is becoming more and more of a trend
Is stealthing an isolated case? Hardly. In relevant Internet forums, more and more male users are boasting about having taken off their condoms during sex. And they are even convinced that this is their right. One can say that this questionable practice has now developed into a real sex trend.
Therefore, especially when it comes to having a quick encounter with someone you don’t know that well, you should be especially careful. This is especially true for women. It’s important to check from time to time during sex, even though you’re actually busy doing something else, whether the condom is still on. Better safe than sorry. Especially when changing positions or during oral sex, it’s easy for a man to slip off the condom unnoticed.
There are no other options than attentiveness and regular checks. If you don’t want to give up the occasional one-night stand, you have no choice but to protect yourself from stealthing.