‘Consequences for victim of secretly removing condom are great’

• Jules Jessurun

  editor online

The Public Prosecution Service considers secretly removing a condom during sex a form of rape, according to two lawsuits filed today. There is nothing in the law about the secret disposal of condoms – also known as stealthing.

Legal experts and victim agencies agree with one of the alleged victims. She said in court that the rule of law is lagging behind in this. “The Center for Sexual Violence, the regular police investigation, the vice squad and the Public Prosecution Service have told me that what he has done may not be considered a criminal offense,” the woman said in a recorded statement.

In this case, 26-year-old Ruben R. admitted to having had anal sex with the woman on a second date without a condom. R. claims to have forgotten the condom “in the heat of the moment” and to have had the intention to use a condom, as he had done earlier in the evening. However, the Public Prosecution Service argues that there was intent. “I don’t accept that you forget,” said the officer.

The second case that was filed today concerned a 28-year-old suspect who did not wear a condom without the consent of his sexual partner. The man denies, but afterwards sent the message “Okay, I thought you felt it. You will be fine” to the woman. The Public Prosecution Service and the suspect’s lawyer differ in opinion about the meaning of this message.

Last year, The Safe Space Club, which provides victim support services, received dozens of stories from victims of stealthing. “From Tinder dates that didn’t go so well to a woman who got pregnant and didn’t know how that was possible,” said founder Sara Dekker-Alaoui in the radio program NOS Met het Oog op Morgen. “Only after inquiry did the victim find out that the person with whom she had had sex had indeed removed the condom unnoticed.”

According to her, the consequences are great for the victims. Not only physically, such as contracting an STI or unwanted pregnancy, but also psychologically. “Sex is based on trust and consent. If you don’t honor both, you leave someone disappointed.”

Knowingly and willingly

To be clear: in these cases it is not about an accidentally torn condom or a condom that slipped off during sex, but about cases in which people knowingly remove a condom while it has been agreed with the sex partner to have safe sex.

Some countries already have a law that includes stealthing, such as Germany and Switzerland, but this is not the case in the Netherlands. Nevertheless, the Public Prosecution Service thinks that stealthing can also be regarded as a criminal offense under the current law. Jeroen ten Voorde, professor of criminal law at Leiden University, said in NOS Met het Oog op Morgen that today’s two cases can lead to a conviction, but that the judge may “have to look for a certain creativity”.

At the moment, in legal terms, rape is defined as “threat of violence or another fact that compels someone to undergo acts that consist of or partly consist of the sexual penetration of the body”. These ‘facts’ are, for example, psychological superiority that a perpetrator has or a dependency relationship in which the victim finds himself. But the Public Prosecution Service also wants to include stealthing.

If this is not possible under current law, stealthing may become a criminal offense in the future. There is a bill from Minister Yesilgöz of Justice in the House. Ten Voorde: “Intruding while you know that the other person does not want to be punished. Not wanting to do this can be in advance, but also during sex. That something suddenly happens of which you say: this is not what we have agreed or this is something I don’t want.”

Dekker-Alaoui finds it impossible to explain that stealthing is not yet seen as rape. She compares it to when someone is penetrated with an object without that person’s consent. “Then it is suddenly very clear from a legal point of view. But whether or not there is a rubber band around it suddenly becomes very difficult to prove and to do something with it under criminal law.”

In the two stealthing cases mentioned, the verdict will follow in mid-March.

Elysa was 19 when she fell victim to ‘stealthing’. The consequences were enormous, she tells Nieuwsuur: