Stealthing is loosely defined as the act of a man taking off the condom during sexual intercourse without the knowledge of the partner. Stealthing is a phenomenon that has recently hit the news cycle because of a study that looked its prevalence in the Columbia Journal of Gender and Law. An Appeals Court in Switzerland found it not be rape but defilement. And Law makers in Wisconsin and California proposed legislation to make it a crime. But is it currently a crime in Florida?
Rape is essentially the crime of sexual battery and defined as the penetration or union of a sexual organ without consent. In this case, we are discussing penetration without consent. Consent must be given intelligently, knowingly and voluntary. It does not include coerced submission. Florida Statute 794.011. Consent “shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender” Florida Statute 794.011. Consent to sexual activity may be actual or implied. Bullington v. State, 616 So. 2d 1036 (3rd DCA 1993).
Since this a recent phenomenon there are no direct cases yet. It’s the state’s burden to prove that the person did not consent beyond a reasonable doubt. Soukup v. State, 760 So.2d 1072 (5th DCA 2000). In a case where the alleged victim states the consent was conditioned on the use of a condom, and that condom was removed by the male, then the question of consent would go before a jury. Since the term itself implies the act was done in secret, it would be hard to state that someone could give knowingly, intelligently or voluntarily consent. Of course, the defense may argue the condom simply broke and was removed in passion and the other individual was informed, but that changes the hypothetical. The hardest part for the prosecution will be overcoming that idea the consent was only later revoked and not at time of the sexual act.
This is of course a simple hypothetical and every case is different. A prosecutor with such a case may have tools at their disposal to prove the lack of consent. As described in the study men who do this practice often do it to more than one person and sometimes even brag about it. Florida allows what is called “other bad acts evidence” in certain cases. If a man takes off the condom with multiple partners there is a possibility of those other partners testifying. Prior acts are admissible to prove a material element. Lewis v. State 591 So.2d 922 (Fla. 1991). Florida also allows prior acts to be admissible to prove knowledge or plan. Florida Statute 90.404(b).