The use of a condom in a relationship is an essential part of sexual consent. Several courts and tribunals throughout the country had reflected this in their sentences and now it has been the Supreme Court that has determined that 'stealing' should be considered a crime. A debate in which the possible sentences of this type of sex offenders are reduced if the court understands that it is an old sexual abuse, but without penetration. Five magistrates of the Supreme Court believe that the sentences should be higher, while the first case finally solved in Spain ends with the perpetrator without ever going to prison.
The word 'stealthing' comes from the English term for stealth. In this case, removing or not putting on a condom without the other person knowing, thus bypassing a condition that has been expressly established before the start of intercourse. Spanish statistics do not show how many sentences are handed down in Spain and databases show only half a dozen sentences on this issue. In 2017, lawyer Alexandra Brodsky published research at Columbia University which reflected the common response of victims of such sexual crimes and the difficulties in reporting: “I don't know if this is rape, but…”.
Until a month ago, Spain had no hard ruling that clearly stated that not putting on a condom, if it was agreed upon in advance, also violated the woman's consent. Partly because some cases had been resolved with non-appeal penalties for non-compliance, as happened in in a court in Salamancabut also because there were precedents that pointed to acquittal.
The clearest comes from a ruling by a Madrid court in late 2009, when a man was in the dock accused of two sex crimes: one for penetrating a woman without a condom and another for doing it again while she was asleep. He was acquitted of the second charge due to lack of evidence, but the first accusation also came to nothing“It cannot be said that the suspect penetrated the complainant without her consent, while he knew that she wanted him to use a condom and he had not put one on,” the ruling said.
That argument has forgotten with the sentence handed down a few weeks ago by the Supreme Court, which sentenced a man to one year in prison who had removed a condom during a sexual relationship without informing the woman in Seville. A case that reached the House of Representatives with a four-year sentence imposed by the Sevillian courts and which is being dealt with with one year in prison, thus avoiding his mandatory imprisonment in practice.
The court presided over by Manuel Marchena has decided without hesitation that this type of act constitutes a sexual crime because it violates the woman’s consent. “The agreement on the use of a condom constitutes an essential element of the consent given to maintain an act of penetrative sexual content,” explains the unanimous part of the ruling. In the same way that consenting to vaginal penetration, he adds, does not imply acceptance of anal penetration.
The main difference in criteria that the dissenting vote of five dissenting judges has caused comes from the qualification. Sexual abuse or assault, depending on the version of the Penal Code that applies, and aggravated by penetration. The practical difference, in this case that occurred in Seville, is that the prison sentence goes from four to one year. The Supreme Court even revokes the measure of supervised release, explaining that the new sentence “will give access to the benefits of the suspended sentence.”
“Violence typical of passion”
Currently, anything after the “yes means yes” law is considered “sexual assault,” but these events occurred in the summer of 2017 and the courts had to clarify whether or not there was enough force to legally speak of rape. After this Supreme Court resolution, the balance tilts in favor of lighter sentences, although cases that can be tried under the new “yes means yes” law will potentially face longer sentences.
At first, the Public Prosecutor accused him of sexual abuse and even demanded a twelve-year prison sentence. And in that first procedure, the Court of Seville opted for the abuse, although the victim was explicit in the trial when she explained that she refused to continue the sexual relationship when she discovered that she was not wearing a condom: “He started asking Please and in good ways to get him off me,” the resolution explained, going so far as to say to him: ‘stop, stop, go away’ and trying to get him off me.
The Andalusian court ruled that this was “sufficient, conscious and causal violence” to speak of a crime of assault under the old Penal Code. That first sentence invited us to examine “the context”: the victim’s mobility was “limited” and everything took place at a time “of a certain intensity, not to mention atypical violence, typical of the passion of a sexual relationship”, making it difficult because the “short words” will reach the abuser’s ears correctly.
Once in the hands of the Supreme Court, the debate has turned to whether the deception committed by the convicted person – removing the condom when this was a condition expressed by the victim – allows us to speak of a crime of sexual assault with penetration. An aspect that has delayed the sentence for months due to the internal divisions of the Criminal Court. The majority understands that it is more appropriate to adapt to the old abuses and a minority has cast a dissenting vote in favor of more serious crimes and punishments.
“The comparison with non-consensual access is not only disproportionate, but also forced. We would be dealing with a form of sexual abuse without penetration, as long as consent has been given, albeit in a different way,” says the majority of the plenary session of the second chamber. The possibility of a fifteen-year prison sentence in a 'stealthing' case, he understands, is disproportionate.
“It involved penetration without mutual consent”
Conclusion that is at odds with that of five of the magistrates, a third of the Chamber. “The penetration was not agreed to on the agreed terms”, this minority faction criticized in the plenary session. The attack on the sexual freedom of the victim, they add, “has involved penetration without mutual consent” and that “invariably” leads to a higher sentence. If there is a problem because the sentences are too high, say these judges, the court can always support a possible pardon.
The Supreme Court excludes the application of the current law, the Criminal Code that emerged after the reform known as “only yes means yes”, because it understands that this would be less favorable to them, since it carries penalties of one to four years in prison according to the article that, they understand, could be adapted to this case.
In recent months, several territorial courts have handed down sentences related to this type of sexual crime. For example, the High Court of Madrid upheld a two-year prison sentence for a man for a similar act: not using a condom, even though the woman had requested one. In that case, the judges rejected the convicted man’s claim that he did not know that this could be a crime: “He knowingly and voluntarily violated the conditions of consent prior to sexual relations without using the condom agreed upon for them. And he did it freely and willingly, knowing what he was doing or with intent and not by accident,” the judges concluded.