SPAIN’S Supreme Court is debating whether ‘stealthing’ – the illicit practice of removing a condom without telling one’s sexual partner – is a specific crime.
The case was triggered by a woman in Sevilla who caught chlamydia from a partner who had ‘stealthed’ her after she had specifically told him to use a condom.
He was initially sentenced to four years in prison for sexual abuse plus a further six months for ‘causing injury’ by passing on the STI in a decision upheld by the Higher Court of Andalusia (TSJA). He was also ordered to pay her €13,000 in compensation.
However, the man’s defence counsel contended that ‘stealthing’ is not explicitly criminalised in the Spanish Penal Code.
His legal team filed a further appeal, leading to the Supreme Court’s involvement in what has become a landmark case.
The man argued that the woman launched the case against him in revenge for his refusal to take their relationship beyond just casual sexual encounters.
Court records show that the man and woman began hooking up regularly in April 2017.
However, a meeting in a car park on July 22 of that year near Avenida de la Paz in Sevilla went sour.
The man told the woman that he had chlamydia and the woman consented to sex so long as they used a condom.
In the event, the man did not use the condom, in violation of the woman’s wishes and fully aware of the risk of transmission.
When the woman realised the man was not wearing a condom, she told him to stop but he continued until she had to physically push him away.
The court took into account the passionate nature of the romp, which made it ‘highly challenging for the recipient of those brief words (‘stop, get off’) to perceive them accurately.’
However it ruled that the man’s action constituted sexual abuse as the woman had agreed to sexual intercourse only on the condition that a condom was used.
The defendant’s actions infringed on her sexual freedom, and the encounter became non-consensual.
The outcome of the Supreme Court debate, set for January, will mark a legal precedent regarding whether ‘stealthing’ is a specific crime separate from sexual abuse.
In the UK, ‘stealthing’ is considered rape under English and Welsh law. This means that anyone who does it can be prosecuted for the criminal offence of rape, which carries a maximum sentence of life in prison.
In the US, ‘stealthing’ is not considered a crime at the federal level, but California has codified it as a civil offence.
This means that the victim can sue the perpetrator, but it is not considered a crime. However, some states are considering legislating it as a criminal offence.
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