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32 Colum. J. Gender & L. 183 (2016-2017)
Rape-Adjacent: Imagining Legal Responses to Nonconsensual Condom Removal

handle is hein.journals/coljgl32 and id is 203 raw text is: 


COLUMBIA   JOURNAL   OF GENDER   AND  LAW


RAPE-ADJACENT: IMAGINING LEGAL RESPONSES
TO NONCONSENSUAL CONDOM REMOVAL

ALEXANDRA BRODSKY*

                                       Abstract

    Nonconsensual  condom  removal during sexual intercourse exposes victims to physical
 risks of pregnancy and disease and, interviews make clear is experienced by many  as
 a grave violation of dignity and autonomy. Such condom  removal, popularly known  as
 stealthing, can be understood to transform consensual sex into nonconsensual sex by one
 of two theories, one of which poses a risk of over-criminalization by demanding complete
 transparency about reproductive capacity and sexually transmitted infections. Adopting
 the alternative, preferable theory of non-consent, this Article considers possible criminal,
 tort, contract, and civil rights remedies currently available to victims. Ultimately, a new
 tort for stealthing is necessary both to provide victims with a more viable cause ofaction
 and to reflect better the harms wrought by nonconsensual condom removal.

                                 INTRODUCTION

    Rebecca' is a doctoral student living in a university town. When she is not researching
for her dissertation, Rebecca works for a local rape crisis hotline. In this role, she often
hears from undergraduate students at the state college. Of these callers, a significant number
describe upsetting sexual contact that they struggle to name. Their partners have, during
sex, removed  a condom  without their knowledge. Their stories often start the same way:
I'm not sure this is rape, but .. . Their accounts resonate with Rebecca. A boyfriend did

C 2017 Brodsky. This is an open access article distributed under the terms of the Creative Commons Attribution
License, which permits the user to copy, distribute, and transmit the work provided that the original author(s)
and source are credited.

*  Skadden Fellow, National Women's Law Center; Yale Law School, J.D., 2016. My gratitude goes first and
foremost to those who spoke to me about their experiences with nonconsensual condom removal. I am indebted
to Edward Stein for his insight, guidance, and encouragement; to Dana Bolger, Elizabeth Deutsch, and Alec
Schierenbeck for their assistance thinking through tough questions; and to Rachel Ross, Abigail Gotter, Charles
Russak, Payal Nanavati, William Coombs, and Anya Crosby Olsen for their thoughtful editing. Special thanks
to Jeremy K. Kessler for illuminating the problem. The views in this Article are my own and do not necessarily
reflect those of my employer.


1  Out of respect for interviewees, all names have been changed.


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