"I do not wish [women] to have power over men; but over themselves" - Mary Wollstonecraft'
To have power over themselves, women must possess bodily autonomy in the sexual and nonsexual aspects of their life. Unfortunately, however, the nonconsensual removal of a condom during otherwise consensual sex, otherwise referred to as "stealthing," poses significant dangers to this autonomy. To respond to these dangers, several state lawmakers have proposed legislation to classify stealthing as rape. Feminist scholars, however, warn against over-criminalizing sexual conduct to ensure that the pleasurable experience of consensual sex is not negated.
To strike a balance between the dangers stealthing poses to women and the over-criminalization of sexual conduct, then, legislatures should refrain from creating new laws that classify stealthing as rape. True, current sexual assault laws coupled with inadequate consent laws make prosecuting stealthing difficult. However, if United States courts adopt a new standard of consent, then prosecuting stealthing under existing sexual assault laws will be plausible. During an era of "Me Too" stories roaring around the United States, ensuring that consent standards protect all people engaged in sexual conduct is imperative.
This Comment will argue that creating new laws to protect against stealthing, specifically, may threaten the notion of bodily autonomy, and therefore, should be avoided. Ultimately, this Comment will recommend that United States courts should employ a standard of conditional consent because this standard achieves equilibrium between the conflicting propositions of the need to preserve a woman’s bodily autonomy and the dangers of over-criminalizing sexual conduct.
Blanco, Melissa Marie
"Sex Trend or Sexual Assault?: The Dangersof "Stealthing" and the Concept ofConditional Consent,"
Penn State Law Review: Vol. 123
, Article 14.
Available at: https://elibrary.law.psu.edu/pslr/vol123/iss1/14