Senate Bill S5768A

                                 
BILL NUMBER: S5768A

SPONSOR: SAVINO
 
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 of 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. The section stipulates the pleading requirements of any claim,
the recovery of damages, as well as a definition of a "sexually protec-
tive device".

Section 2 provides the effective date of 90 days after being signed into
law.

 
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 ground breaking 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 earlier this year, a
Swiss court found a man who had removed a condom during penetrative sex
without his partner'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 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:

Amendment - to A Print simply reflects change in section of law from
Civil Rights law 52-c to 52-d, since previous section has already been
taken by a recently passed law.

2019-2020 Sessions - S4400C - referred to Codes, no further action

2018 Session - new bill. S. 7157 - referred to Codes, no further action

 
FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law.