During law school, I spent a lot of time thinking about how this new thing I was learning about could actually help survivors of sexual assault—not just in theory, like my textbooks discussed, but in practice. I'd spent my time in college involved in anti-rape activism, and I wanted to be a lawyer so I could bring that civil rights fight from campuses to courtrooms. I was particularly interested in how law could help people who experienced forms of abuse we don't talk about much but which I knew—from friends, from organizers, from my own experiences—were very real.
That's how I ended up writing an article on nonconsensual condom removal, which the Columbia Journal of Law & Gender published a few weeks ago. Law review articles aren't exactly known for going viral. I thought I'd be lucky if my mom read it, though, given the subject matter, maybe not; the piece is wonky and technical and footnoted like, well, a law review article.
But it struck a chord, and somehow managed to trigger an international conversation about assholes who remove condoms during sex without their partners' permission. (Some people call this "stealthing," but I think the term trivializes the harm.) The paper made Twitter's "moments," and my mentions flooded. Reporters called my boss. Reports in languages I can't speak covered reactions to the article. To date, two legislators have proposed laws inspired by the paper, and others are considering following suit.
Before I started writing, I interviewed survivors to understand how they'd experienced nonconsensual condom removal to make sure my analysis and recommendations were responsive to their real needs. All told me they had been worried about practical health effects, like sexually transmitted infections and pregnancy. But they also felt a less concrete but no less devastating harm: a grave betrayal. As one woman told me, "The harm mostly had to do with trust. He saw the risk as zero for himself and took no interest in what it might be for me, and from a friend and sexual partner, that hurt."
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That kind of betrayal sounds a lot like sexual assault. Some of the people I spoke to said nonconsensual condom removal felt much like rape; one woman called it "rape-adjacent." Others said they didn't feel like they'd been assaulted—but that didn't make it OK.
In hopes of learning more, I looked online for accounts from victims. I found many of those from both men and women. I also found myself in some very dark corners of the internet I'd never imagined existed: message boards and websites where cis men (and always cis men) gave each other advice for how to remove a condom without getting caught. So many of them talked about doing so as though it was some kind of natural male right to "spread their seed," even when their partners were other men.
Since the article came out, I've heard from so many—too many—people who say a partner removed a condom during sex without permission. Many of them say that, because they didn't know what to call it, and because they didn't know others had the same experience, they didn't know if they had the right to be angry. One woman told me that she was terrified after her partner removed a condom but didn't know it was a "thing" until she read my article. Just naming violence can have such power.
Some of the people I spoke to said nonconsensual condom removal felt much like rape; one woman called it "rape-adjacent."
Overall, the response has been overwhelmingly affirming and productive. I'm struggling, though, with one unexpected consequence: proposed criminal laws. The lawmakers in the two states that have so far proposed laws criminalizing nonconsensual condom removal are fighting the good fight, and I'm so grateful for their passion, but I wish they'd chosen a different tactic: a civil law remedy.
I'm skeptical of leaving matters in the hands of the criminal justice system, which rarely works for survivors of sexual violence. Victims don't get to decide whether to bring criminal charges; that decision belongs to prosecutors, who tend to pursue only those cases that look like a Law and Order: SVU episode. I've had a number of clients who reported to the police but were told their cases were too "complicated" for prosecution, often because they knew the assailant, which really isn't that complicated at all, given that most survivors do. Even if the assailant is charged, the victim is little more than a glorified witness: Survivors aren't parties to criminal law suits, and don't get to make strategic decisions. Instead, the state uses their testimony to make its case. Sometimes victims are even imprisoned if they refuse to take the stand.
Plus, not all survivors want to go through an arduous trial or to see their abuser in prison. Many don't trust the police, and rightfully so. To state the obvious: criminalization is a force of violence and inequality. I get that some victims turn to the criminal law for remedies and protection we don't offer elsewhere, and that's legitimate. But I also get why many survivors choose not to report to the police because they don't want any part in criminalization.
In my paper, I propose a tort law—a civil, rather than criminal, law—because it gives survivors more control. With torts, the survivor gets to decide whether or not to sue the assailants and, along with their lawyers, how to do so. They get to decide what they want out of the suit, like money damages. Civil options aren't perfect: unless you're "lucky" enough to be assaulted by a millionaire, it might be hard to win enough money to attract an attorney. Still, I think civil remedies work better than the criminal law for survivors.
I don't have easy answers. Designing legal remedies for survivors is impossibly complicated, implicating grave moral questions and highlighting the wide range of needs victims confront in the wake of violence. But we don't get to dodge tough questions when they're this urgent. That's part of what drives me to support survivors who report to the police while also seeking to build real alternatives, too. My greatest hope for this improbably viral paper is that it can spur the kind of real, concrete change I'd puzzled over in law school. Let's give survivors tools that work for them.