NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A157
SPONSOR: Paulin TITLE OF BILL:
An act to amend the civil rights law, in relation to creating a private
right of action for unconsented removal or tampering with a sexually
protective device
PURPOSE:
To provide a private right of action for unconsented removal or tamper-
ing with a sexually protective device
SUMMARY OF PROVISIONS:
Section 1 amends the civil rights law by adding a new section 52-d that
creates a private right of action for the unconsented removal and
tampering cf a sexually protective device, provided that the parties who
had agreed to sexual intercourse, oral sexual conduct or anal sexual
conduct had consented to the act with the explicit understanding and
knowledge that such device would be used. The section also provides that
an action could be taken if one was intentionally misled into believing
that a sexually protective device was used when it was not or was inop-
erable. Past consent to sexual activity without the use of a sexually
protective device shall not alone constitute consent to sexual activity
without the use of a sexually protective device at any future time. The
section provides for the recovery of damages, including compensatory and
punitive damages. The section also expressly gives the court discretion
to consider the emotional impact of the defendant's conduct, including
but not limited to, the risk of sexually transmitted diseases, and the
risk of nonconsensual pregnancy, in awarding damages. The section also
contains as well as a comprehensive definition of a "sexually protective
device."
Section 2 provides the effective date.
JUSTIFICATION:
"Stealthing" is the colloquial term given to the secretive and non-con-
sensual removal of a condom during otherwise consensual intercourse. A
recent article in the Columbia Journal of Gender and Law has brought
critical attention to this practice, which describes it as "rape adja-
cent" and akin to rape. Such an act can be understood to transform
consensual sex - where condom usage was a condition for consent - into
nonconsensual sex, leaving victims exposed to the physical risks of
pregnancy and sexually transmitted disease, as well as the mental
violations of dignity and autonomy.
While the term "stealthing" might be new, the practice of nonconsensual
condom removal itself is not. Since the publication of the Columbia
article, a growing number of victims have come forward who no longer
feel that their experiences were isolated incidents. Offenders, on the
other hand, have existed in online communities for some time where they
describe their motivations - which often include a need for control,
domination or sexual supremacy - as well as share tips on how to remove;
or break a condom without their partner being aware. Admitted accounts
from perpetrators have also pointed to gender-motivated reasons linked
to gender-subordination and misogyny. While men have also been noted to
be victims of nonconsensual condom removal, the majority of victims are
women.
An argument for defining nonconsensual condom removal as a form of sexu-
al assault revolves around the idea of affirmative consent - wherein
condom removal vitiates consent. This concept was preserved in state
statute with the groundbreaking 2015 "Enough is Enough" law tackling
college campus sexual assault and included a uniform definition of
affirmative consent. This definition states that affirmative consent is
"a knowing, voluntary, and mutual decision among all participants to
engage in sexual activity. Consent can be given by words or actions, as
long as those words or actions create clear permission regarding will-
ingness to engage in sexual activity." Using this reasoning, if consent
is based on the use of a condom and that condom is removed or not used
at all without the consent or knowledge of one of the participants, the
original consent is at an end. Furthermore, sex with and without a
condom have very different amounts of risk involved, and are therefore
separate acts that require separate consent.
Currently, no record is available indicating that a U.S. Court has ever
been asked to consider condom removal. (However, a Swiss court found a
man who had removed a condom during penetrative sex without his part-
ner's consent guilty of rape, although an appeals court later changed
the conviction to a lesser charge.) Nevertheless, rape and criminal
sexual assault cases are difficult to successfully prosecute.
This legislation would offer to victims a more viable cause of action to
better address the varied risks and harms they endure as a result of
nonconsensual condom removal. The bill creates a civil path with a new
tort specific to the act while prohibiting the removal of a condom
during sex without both partners' affirmative permission. By passing
this legislation, New York would recognize that victims of nonconsensual
condom removal experience real harms - emotional, financial and physical
- to which the law might provide remedy through compensation or simply
an opportunity to be heard and validated.
LEGISLATIVE HISTORY:
A.665a of 2021 and 2022 advanced to third reading/ Same as S.5768A
committed to rules.
A.1313C of 2019 and 2020, advanced to third reading / Same as S.4400C,
amended and recommitted to codes
A.8734A of 2017 and 2018, referred to judiciary / Same as S.7157A of
2018, referred to codes
FISCAL IMPLICATIONS:
None
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law.
STATE OF NEW YORK
________________________________________________________________________
157
2023-2024 Regular Sessions
IN ASSEMBLY(Prefiled)
January 4, 2023
___________
Introduced by M. of A. PAULIN, DINOWITZ, SEAWRIGHT, SIMON, SAYEGH --
read once and referred to the Committee on Judiciary
AN ACT to amend the civil rights law, in relation to creating a private
right of action for unconsented removal or tampering with a sexually
protective device
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The civil rights law is amended by adding a new section
2 52-d to read as follows:
3 § 52-d. Private right of action for unconsented removal or tampering
4 with a sexually protective device. 1. Any person who engaged in sexual
5 intercourse, oral sexual conduct or anal sexual conduct, as defined in
6 section 130.00 of the penal law, with another person that was mutually
7 agreed upon by the parties involved with the explicit understanding and
8 knowledge that a sexually protective device would be used to help
9 prevent or safeguard against pregnancy or a sexually transmitted
10 infection shall have a private right of action for damages against such
11 other person under any of the following conditions:
12 (a) The other person intentionally and without consent removed or
13 tampered with such sexually protective device during such sexual inter-
14 course, oral sexual conduct or anal sexual conduct, in a manner likely
15 to render such device ineffective for its common purpose;
16 (b) The other person intentionally and without consent used a sexually
17 protective device during such sexual intercourse, oral sexual conduct or
18 anal sexual conduct that such other person knew had been tampered with
19 in a manner likely to render such device ineffective for its common
20 purpose; or
21 (c) The other person intentionally misled the person into believing
22 that a sexually protective device was being used by such other person
23 during such sexual intercourse, oral sexual conduct or anal sexual
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02111-01-3
A. 157 2
1 conduct, and such sexually protective device was known by such other
2 person to be either not used or inoperable.
3 2. Past consent to sexual activity without the use of a sexually
4 protective device shall not alone constitute consent to sexual activity
5 without the use of a sexually protective device at any future time.
6 3. Damages recovered by a plaintiff pursuant to this section shall
7 include compensatory damages. In addition thereto, the trier of fact
8 may award punitive damages and such other non-monetary relief as may be
9 appropriate. In awarding damages, the court may consider the emotional
10 impact of the defendant's conduct, including but not limited to, the
11 risk of sexually transmitted diseases, and the risk of nonconsensual
12 pregnancy.
13 4. Nothing in this section shall be deemed to abrogate or otherwise
14 limit any right or remedy otherwise conferred by federal or state law
15 including but not limited to, any right or remedy related to child
16 support, nor shall any award under this section be used to offset child
17 support obligations that may arise in connection with this section.
18 5. For purposes of this section, the term "sexually protective device"
19 shall mean any one of the following intended to prevent pregnancy or
20 sexually transmitted infection: male or female condom, spermicide,
21 diaphragm, cervical cap, contraceptive sponge, dental dam, or another
22 physical device.
23 § 2. This act shall take effect on the ninetieth day after it shall
24 have become a law, and shall apply to acts occurring on or after such
25 date.
