Wednesday, May 10, 2017

"Stealthing" and Autonomy

By Sherry Colb

In my column for this week, I discuss the phenomenon of "stealthing," whereby a man engaged in sexual intercourse stealthily removes the condom he is wearing, with neither the knowledge nor the consent of his partner. I suggest in the column that this practice does not rise to the level of sexual assault because there is consent to sex, though the consent is not "informed."  I want to suggest here, however, that exposing a partner to the risk of pregnancy and sexual transmitted infections  ("STIs") represents a harm that goes beyond the usual case of deceiving one's partner to induce him or her to have sex.
When a person (whether a man or a woman) has sex with a man who is wearing a condom, he or she is seeking the pleasure or comfort or closeness that comes of sexual intercourse without the potential fallout associated with unprotected sex. Upon learning that one's partner removed his condom while the sex was in progress, a victim is likely to feel scared (if a fertile female, of pregnancy, and whether male or female, of STI's). Such fear is completely legitimate and may be traumatic. Whether pregnancy or STI's are the concern, a victim of "stealthing" cannot know whether the risk has been realized for some period of time, and one must therefore live in a state of anxiety and worry while waiting for results. This waiting period stretches out the trauma and anxiety, and things naturally become worse if the risks comes to pass.  This counsels in favor of a civil cause of action or criminal law addressing the practice of stealthing, even if we do not generally pursue "rape by deception" (the obtaining of consent to sex by deceiving one's partner).

In other cases in which one partner deceives the other about some fact that matters to the deceived partner and that induces him or to have sex, we might consider the harm less significant than the harm of "stealthing," from an objective point of view. Say, for example, one partner wants only to have sex with people of his religion and the partner lies and says that she is of the same religion. In such a case, the partner who is deceived may be very upset or may not be that upset at all.  The degree of disturbance for the person who is deceived will depend entirely on his or her subjective feelings about the particular matter. The same could hold true for deception about one's racial background or deception about one's interest in pursuing the relationship beyond a one night stand. Although these sorts of misrepresentations can be experienced subjectively as very hurtful, it is difficult to say that as a society we want to penalize people for engaging in this brand of deception in the context of sexual interactions. In a sense, it feels as though such lies are part of the risk assumed by people who choose to engage in sexual contact with another person, much like the risk that the person does not look that good the next day or the risk of other sorts of regrets associated with the decision to have sex with the particular person.  Deceiving one's partner about how desirable one really is could be considered a regular (if reprehensible) part of sexual activity between new partners.

Another way of looking at the problem is to posit that sexual relationships are private and ought generally to be kept private unless there is something we would want to call cognizable wrongdoing in the course of the relationship. Deceiving one's partner about race, religion or some other fact that many would regard as irrelevant should probably fall on the privacy side of the line, where we understand that some harm might have been done but we do not subject it to legal sanction. This allows us to avoid making normative judgments about the potential offensiveness of the deceived individual's wanting to have particular information (such as racial background facts about the partner). We simply classify most deceptions as private and not legally actionable.

Deceiving a partner about whether one is wearing a condom (or whether one is wearing it for the duration of the sexual act) falls on the other side of the line, because people generally will be very upset at being subject to such deception--it is not idiosyncratic--and because victims are subject to the risk of substantial tangible physical harm as a result of the deception. The harm is therefore objectively serious and appropriate for legal intervention.

Perhaps the hard cases will be those in which a partner lies about being disease-free or infertile.  In those cases, we might say that people should always assume that a partner may be fertile or may carry an STI and use protection just in case, regardless of what he or she says.  Unlike the situation in which a partner lies about whether he is using protection at all during the act, a lie for which there is no method of self-protection other than never having sex with anyone, the lie about STI's and/or fertility can be protected against fairly well through the use of condoms. On the other hand, one might argue that the reason for believing that lying about condom use should itself cognizable is the very risk of disease and pregnancy about which a lie might falsely reassure a partner that no condom is necessary.  I am conflicted about this because, on the one hand, I think the harm in lying to persuade a partner not to use protection (or to have sex at all) is great and likely to upset most people on the receiving end of the lie. On the other hand, we do not want to put a premium on ignorance, and a person who doesn't bother finding out that he is infected with an STI could more plausibly claim not to have lied in telling a partner that he was disease-free than a person who goes to the doctor and gets himself tested. We want to reward rather than penalize people for getting tested and being conscious of their health status, quite apart from what they decide to share with partners.

All things considered, I would perhaps err on the side of considering any lie about being healthy (when one knows that one actually has an STI) or being infertile (when one knows one is actually fertile) a legally cognizable harm because it is so close to the harm of stealthing--pretending to be using a condom when one has actually removed it. It is a sad commentary on our society that such behavior takes place.  Despite the risks, I would hope that legal recourse might help to curb the destructive impulse to engage in it or at least go some way in repairing the harm after the fact.