Does Stealthing Require a Special Kind of Consent Analysis Under Title IX?

By Brett A. Sokolow, Esq., Chair, TNG Consulting LLC and President, ATIXA

If your partner says, “I’ll have sex with you, but only if we do it hanging upside down from the ceiling while howling like werewolves,” I’d suggest that if you want to have sex, start working on your howling technique. The same is true for any condition expressly made upon the willingness to give consent. If your partner says yes, but only to vaginal penetrative sex, then all other orifices are expressly off-limits. If your partner says yes, but only from behind, then don’t expect other positions to be on the table. We’re talking about clearly expressed conditions, not preferences, and when your partner expresses a condition, limitation, or expectation, and you fail to meet it, you’ve failed to satisfy the requirements necessary to have consent. Thus, if you’re not howling, the sex is not consensual – it’s a sexual assault. There are no implied conditions – they must be express, and that’s where the special case of stealthing needs to be examined.

I am not a fan of the term stealthing, but it has become popularized. Why don’t I like it? Because the real term is sexual assault. Stealthing makes it seem less than. What is stealthing? It’s not wearing or removing a condom in sexual situations in which the use of a condom is an understood condition of consent, where the partner being penetrated is not aware of the failure to wear the condom by the penetrating partner. Thus, the stealth element. We’re not talking about situations here where a condom tears, or unknowingly comes off. We’re talking about taking it off intentionally, not putting it on intentionally, knowing it has torn and not replacing it, or knowing it has fallen off but not replacing it.  Why is stealthing an act of sexual assault? Because you’re not howling. Once an expectation or condition of consent is agreed to, it must be honored. When it is breached, sex is not consensual.

The TNG consultants have been debating this internally once again, because of the way that the 2020 Title IX regulations work. Many of you know that in the ATIXA model policies we have published, we include the offense of sexual assault, as defined in the regulations, but we also have an offense called sexual exploitation, defined as:

  • An individual taking non-consensual or abusive sexual advantage of another for their own benefit or for the benefit of anyone other than the person being exploited, and that conduct does not otherwise constitute sexual harassment under this Policy.

Examples of Sexual Exploitation include, but are not limited to:

  • Sexual voyeurism (such as observing or allowing others to observe a person undressing or using the bathroom or engaging in sexual acts, without the consent of the person being observed)
  • Invasion of sexual privacy (e.g., doxxing)
  • Knowingly making an unwelcome disclosure of (or threatening to disclose) an individual’s sexual orientation, gender identity, or gender expression
  • Taking pictures, video, or audio recording of another in a sexual act, or in any other sexually related activity when there is a reasonable expectation of privacy during the activity, without the consent of all involved in the activity; or exceeding the boundaries of consent (such as allowing another person to hide in a closet and observe sexual activity; or disseminating sexual pictures without the photographed person’s consent), including the making or posting of non-consensual pornography
  • Prostituting another person
  • Engaging in sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or a sexually transmitted disease (STD) or infection (STI), without informing the other person of the virus, disease, or infection
  • Causing or attempting to cause the incapacitation of another person (through alcohol, drugs, or any other means) for the purpose of compromising that person’s ability to give consent to sexual activity, or for the purpose of making that person vulnerable to non-consensual sexual activity
  • Misappropriation of another person’s identity on apps, websites, or other venues designed for dating or sexual connections (e.g., spoofing)
  • Forcing a person to take an action against that person’s will by threatening to show, post, or share information, video, audio, or an image that depicts the person’s nudity or sexual activity
  • Knowingly soliciting a minor for sexual activity
  • Engaging in sex trafficking
  • Knowingly creating, possessing, or disseminating child pornography

So, our internal debate has been over whether stealthing falls within the Title IX regulatory definition of sexual assault, or whether it is a better fit within the definition of sexual exploitation, which includes actions that go beyond the boundaries of consent as given. Pre-regulations, we really did not guide our clients on which policy to apply, because it really didn’t matter, and stealthing could arguably fit within either. But, since the regs took effect in August of 2020, it now matters. Call it sexual assault, and institutions must apply the rigorous process of §106.45. Call is sexual exploitation and it’s outside the regulations and can be resolved through some alternative process that is likely less rigorous than the one prescribed by federal regulations. So, now we are pressed by the question from our clients, which is it?

Here’s our answer. There is no universal default assumption of the use of a condom during sex. Some sex is protected, and some is not. It’s contextual. The first time two strangers hook up, barring an explicit agreement to the contrary, the expectation for a condom is reasonable. In the dynamic of a couple who have been dating long-term who generally don’t use condoms, condom use won’t be expected as a default. For a couple who are at higher risk of contracting or transmission of HIV, condom use would be an expected default, if that risk is known (and Prep is not being used). For a couple who only use condoms during the time when a partner is ovulating, the expectation would be condoms at certain times, but not at others. Context matters.

As a result, our consensus within the TNG consultant team is that institutions should apply their sexual assault policies to stealthing and other violations of clearly expressed conditions, while applying the sexual exploitation policy to a failure to use a condom in a situation where a reasonable person (similarly situated) would use one, based on context. In that sense, sexual exploitation would likely be viewed as a lesser offense than sexual assault, and carry lesser sanctions, accordingly. Stealthing is an intentional act that violates someone’s clearly expressed will, and as such is a form of sexual assault and should be sanctioned accordingly.

If you like the definition of sexual exploitation offered above, you’ll find it and a full range of innovative model policies and procedures available for free from ATIXA here. Learn more about consent at ATIXA’s Consent Workshop on Sept. 30.