Stealthing , a practice that involves surreptitiously removing a condom during sex without the other person’s consent, has sparked legal and social debate in recent years. This behavior not only violates trust, but also constitutes a form of sexual assault under current law.
In this article, we will analyze how this behavior is criminally regulated, its relationship to consent, and the legal implications in Spain, especially in light of the reform introduced by the “Only Yes Is Yes” Law.
The crime of sexual assault, regulated by Articles 178 et seq. of the Penal Code, consists of committing any act that violates the sexual freedom of another person without their consent. In this sense, the legally protected right is sexual freedom, placing the victim’s consent at the heart of the crime.
There are two main types of sexual assault: those committed through violence or intimidation, and those that are not. However, we can also highlight cases in which sexual assault is carried out by taking advantage of a situation of abuse of superiority or vulnerability of the victim.
Sexual assaults without violence or intimidation are those committed fleetingly or unexpectedly, so that the victim has no time to resist, through deception, or on people who are physically unable to resist, such as people with reduced mobility.
On the other hand, sexual assaults with violence or intimidation are those carried out through any act of attack or coercion, or through the use of any physical means capable of subduing the victim’s will.
In cases of sexual assault with violence, we can distinguish, in turn, between violence understood as vis compulsiva , which consists of subjecting the victim to consent to the sexual act perpetrated, and violence understood as vis absoluta , which consists of physically preventing the victim from resisting the sexual act.
Finally, we must differentiate between sexual assaults involving vaginal, anal, or oral penetration and those that do not involve penetration. The former carry a prison sentence of 4 to 12 years. The latter, 1 to 4 years.
Organic Law 10/2022 , of September 6, on the comprehensive guarantee of sexual freedom (also known as the “Only Yes Is Yes” Law) represented a significant reform in the area of sexual crime. This amendment has had a particular impact on the definition of consent in sexual acts.
Consent has always been the essential core of sexual crimes, forming the negative element of the offense: when there is consent, there is no crime against sexual freedom. However, some jurisprudence has traditionally required the victim to somehow externalize the lack of consent, while for another, it was the perpetrator who had to ensure the existence of consent.
Following the reform implemented by Organic Law 10/2022, this discrepancy is settled, as it is required that consent be presented in an affirmative manner: Consent will only be understood to exist when it has been freely expressed through acts that, taking into account the circumstances of the case, clearly express the will of the person .
This reform led the Supreme Court to specify the characteristics that consent must have in its Ruling No. 23/2023, of January 20, understanding that consent must be based on acts, that is, on any type of manifestation, whether verbal or nonverbal, gestural or situational, but always explicit. Therefore, consent must always be positive and conclusive.
Stelathing is the act of removing a condom during sexual intercourse, without the victim’s knowledge . This means that the victim, who agreed to sexual intercourse solely through the use of a condom, is unaware that the perpetrator is no longer wearing it.
In other words, Supreme Court Ruling 186/2021, of July 1, defines stealthing as the surreptitious removal, dispensing with, or not using a condom with the same secrecy during all or part of sexual intercourse, despite having been agreed upon or imposed by the couple as a condition of consent.
The discussion about the criminal relevance of stealthing revolves around the object of consent in sexual relations. That is:
And, consequently, whether consent is invalid when it has been given under deception, making the victim believe that a condom is being used.
This question is answered by the recent Supreme Court Plenary Judgment 603/2024, of June 14, clarifying that in cases of stealthing , the key is not to assess whether consent was vitiated by deception, but to determine whether the sexual act performed exceeded what was consented to.
The Supreme Court establishes that:
In this sense, the Supreme Court considers that crimes against sexual freedom do not protect factors external to sexual ones, such as:
The only thing that is truly protected is the autonomy to decide about one’s own sexuality, in its strictly corporal dimension.
Therefore, sexual intercourse with or without a condom is not merely a change in the “how” of the act, but a different “what.” The victim consented to a relationship under certain conditions that guaranteed her sexual autonomy; violating those conditions constitutes a non-consensual act.
Ultimately, Judgment 603/2024, of June 14, reinforces the idea that sexual freedom is not limited to mere participation in the sexual act, but rather encompasses the right to establish the conditions under which it is exercised. Any violation of these essential conditions renders the act non-consensual, with corresponding criminal consequences.
In this sense, the Supreme Court considers that crimes against sexual freedom do not protect factors external to sexuality, such as the potential risk of pregnancy or disease transmission. The only thing truly protected is the autonomy to decide about one’s own sexuality, in its strictly corporeal dimension.
Therefore, sexual intercourse with or without a condom is not merely a change in the “how” of the act, but a different “what.” The victim consented to a relationship under certain conditions that guaranteed her sexual autonomy; violating those conditions constitutes a non-consensual act.
Ultimately, Judgment 603/2024, of June 14, reinforces the idea that sexual freedom is not limited to mere participation in the sexual act, but rather encompasses the right to establish the conditions under which it is exercised. Any violation of these essential conditions renders the act non-consensual, with corresponding criminal consequences.
Regarding the type of sexual assault that can be applied in cases of stealthing , the Supreme Court opts for assault without penetration, as provided for in Article 178.1 of the Penal Code, for several reasons. On the one hand, it considers it contrary to the principle of proportionality of penalties to apply the penal framework provided for the crime of rape (from 4 to 12 years in prison). On the other hand, and above all, the Supreme Court emphasizes that, in cases of surreptitious removal of the condom, penetration was in fact consensual, albeit with the use of a condom.
Consequently, stealthing will be considered a crime of sexual assault without penetration, punishable by a prison sentence of 1 to 4 years.
Sugrañes has a team of lawyers who are experts in sexual assault crimes and have participated in numerous sexual offense proceedings.
We defend those under investigation or accused of sexual assault before courts throughout the country.
Likewise, we represent victims of sexual assault crimes by acting as private prosecutors in order to obtain a conviction against their attacker.
Contact us today . Our team is available to offer a confidential and personalized consultation tailored to your needs.
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