Secretly removing condom a crime?

Judith Levine (2017) wrote an article about this. Is stealthing a crime? First of all, what is stealthing?

Non-consensual condom removal, popularly known as "stealthing," is the practice of one sex partner covertly removing a condom. Sexual consent has only been given by the other sex partner for condom-protected safer sex. (Hatch, 2017) In other words, consent to the sexual congress has already been given with the condition that the act must be done with a condom.It must be noted that there are condoms for males and those for females. For the purpose of this post, the focus is on males who stealth.

In the United States (US), there are laws that punish stealthing and the nondisclosure of HIV status. In the Philippines, however, it is not clear whether the act is punishable as a crime.

Can it be classified as "sexual violence" under Republic Act (RA) 9262?

RA 9262 or the Anti-Violence against Women and their Children (VAWC) Act is a piece of landmark legislation that defines and criminalizes acts of violence against women and their children  perpetrated by women's intimate partners, i.e, husband; former husband; or any person who has or had a sexual or dating relationship, or with whom the woman has a common child. (G.R. No. 179267)

The law provides for protection orders from the barangay and the courts to prevent the commission of further acts of VAWC; and outlines the duties and responsibilities of barangay officials, law enforcers, prosecutors and court personnel, social workers, health care providers, and other local government officials in responding to complaints of VAWC or requests for assistance. (G.R. No. 179267)

Acts of violence may be physical, sexual, psychological or economic. Unfortunately, it cannot be said that stealthing is a form of sexual abuse under this law because it provides that "sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited to the following:

[1] Rape;
[2] Sexual harassment;
[3] Acts of lasciviousness;
[4] Treating a woman or her child as a sex object;
[5] Making demeaning and sexually suggestive remarks;
[6] Physically attacking the sexual parts of the victim's body;
[7] Forcing her/him to watch obscene publications and indecent shows;
[8] Forcing the woman or her child to do indecent acts and/or make films thereof;
[9] Forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the abuser;
[10] Acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion; and
[11] Prostituting the woman or child.

The enumeration under [10] of circumstances under which sexual activity is engaged in by the victim does not include the term "stealth."

Can it be classified us "psychological violence" under RA 9262?

Under said law, "psychological violence" refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity.

It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children.

The term "emotional suffering" is broad enough to include the moral anguish that a woman would feel if her sexual partner violates her condition that sexual act must be engaged in with a condom. It may also include the emotional pain that a woman would feel if she gets pregnant without her consent.

How about rape by fraudulent machination?

RA 8353 or the Anti-Rape Law of 1997 added more details to the then outdated rape law codified in Act 2815 or the Revised Penal Code.

One of such addition is "rape by fraudulent machination."

Before a discussion of mere opinion, jurisprudence must first be reviewed. According to the Supreme Court through the ponencia of Justice Leonen, "when a person is a victim of fraudulent machination or manipulation, such as when she is induced to have carnal knowledge to treat a person’s disease that he or she does not really have, she is not in full control of his or her decisions. He or she acts without full or with false knowledge of the circumstances from which he or she bases his or her actions. Therefore, any consent he or she gives is either false or not his or her own. Any lack of resistance may not be interpreted as voluntariness." (G.R. No. 199402)

Opinion has been offered that stealthing can be considered rape by fraudulent machination if [1] the victim made it as a condition for sexual activity that condom be used, without which she would not consent to sex, [2] the offender from the very start had no intention to comply with the condition and [3] said offender fraudulently induced the victim to have sex by promising that the condition would be complied with.

In Levine (2017)'s article, she wrote: "Beyond anxiety about pregnancy and disease (and the costs of tests), [victims] spoke of a betrayal of trust that insulted their dignity and violated their autonomy."

She added: "The crime, in other words, is moral. The harm is emotional. The losses, aside from dignity and autonomy, include a sense of predictability and security. Stealthing is a mindfuck. Whatever its physical risks, at the heart of the emotional harm may be the feeling of risk itself."

SOURCES: Judith Levine (2017). Is Stealthing a Sex Crime?. June 21, 2017. GENDER & SEXUALITY.

Hatch, Jenavieve (2017). "Inside The Online Community Of Men Who Preach Removing Condoms Without Consent". 21 April 2017. Huffington Post.