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Letter from Brussels: The Right to Have Sex Without a Condom

by De Ket in Columns & Opinions , 19 juni 2017


A recently published American study in the “Columbia Journal of Gender and Law” examines the extent to which - according to US legislation - assault, rape or the administration of intentional injuries related to stealthing can be determined. For those who are not familiar with the term: stealthing means that the man removes the condom during anal or vaginal penetration unnoticed.

For the sake of clarity: both straight and gay men engage in this. Two gay friends of mine have admitted having experienced this. Hence the importance of stopping in the heat of the moment, to feel whether the condom is still in place.

It is absurd that both straight and gay aficionados of this practice fill entire internet forums with the reasons why they like to do this, and with helpful tips on how to perform stealthing as unnoticed and expertly as possible. They use all sorts of arguments: a more intense sexual experience, and so on. This online community is convinced that they have the right to have sex without a condom, without explicit agreement of the sex partner. Strangely enough, this right to have sex without a condom is something I also hear in my circle of gay friends, especially in those who are HIV positive.

They kindly let the opportunity pass when a sex partner insists on using a condom. There is something as human rights, the right of representation, etcetera. But the right to have sex without a condom is a self-assumed right without any duties. No rights without duties. Besides the right of sex without a condom or permission, they also feel they have the right to “sow their seeds.” As it happens, bareback videos have titles in the same wording.

In spite of many testimonies, of both straqight and gay men who have become the victim of stealthing, this American study was not yet able to find out whether US courts have indeed looked at stealthing cases. The reason for this is the same as the reason why victims do not report them: it is legally unclear whether it concerns assault, rape or the administration of intentional wounds and injuries. One does not need to have a legal background to realise that the judicial qualification of stealthing is material attorneys and lawyers should sink their teeth into.

According to Alexandra Brodsky, the author of this legal study, “sex without permission” is an absolute condition in order to consider this a crime. “The victim agreed to have sex and feel a condom, not to come into contact with the penile skin. The consent for any form of sexual contact is not a go-ahead for all forms of sexual contact,” the report says.

Just agreeing on oral sex does not meaning agreeing to anal or vaginal sex. And those who agree on sex with a condom do so weighing the pros and cons of this act. “Making love without a condom means an increased risk of pregnancy and STDs,” she notes in her study. “Considering this increased risk, this sexual act changes into another act, whereby the consent for the sexual act does not automatically pass on to the other act”.

Yet Brodsky knows all too well that it is difficult to proof. In her conclusion she argues in favor of a new stealthing law with an improved legal vocabulary and better descriptions, precisely to make the burden of proof somewhat easier to deal with. To her stealthing is a form of sexual violence.

Fortunately we do not need scientific evidence for this conclusion, which in extenso is somewhat more complicated than described in this column. My common sense says that stealthing is a no-go area, just as “the right to have sex without a condom” or “the right to spread my seed” is.

The lawyers among you can read her full study here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2954726.

Source: “Columbia Journal of Gender and Law,” Vol. 32, No. 2, 2017.

Yours sincerely,

De Ket



 







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