WA's HB 1958 would require consent before removing a condom during intercourse

OLYMPIA — Testifying before lawmakers, Mina Hashemi recounted how three years ago she was shocked to see that the condom she had explicitly asked for during sex had been removed. 

“I felt deeply violated,” Hashemi said. “While I was lucky not to get an STI or pregnant, there are many stories of women who did. Stealthing is a very specific type of sexual violence that does not neatly fit within existing definitions of sexual assault in Washington. We must close the loophole on assault.”

“Stealthing” refers to tampering with or removing any kind of sexually protective device without the consent of a partner. It is commonly referred to as a form of sexual assault. 

HB 1958 could make this practice punishable by law in Washington. It has already passed the House with bipartisan support, in a 64-33 vote. 

The bill also stipulates that action can be taken when stealthing is done purposely, but also when a partner has knowledge of a condom breaking during intercourse and continues without informing their partner.  California and Maine are the only other states to have already passed legislation on “stealthing,” but no other states have included devices outside of condoms such as dental dams or spermicide. 

The National Domestic Violence Hotline categorizes stealthing as a means for “control” and explains that “unexpected pregnancy could be a way for a partner who is abusive to manipulate their partner into staying in the relationship,” using a possible child as leverage. 

The addition of long-term birth control devices in the bill has sparked debate. 

“I think the underlying principle we can all agree is positive for everyone,” Eric Pratt, a concerned citizen, said. “But what I don’t like is that it doesn’t go far enough in that it doesn’t encompass oral contraceptive birth control and diaphragms.”

Rep. Michelle Caldier, R-Gig Harbor, agreed, explaining women sometimes stop taking oral contraception or remove an IUD out without telling a spouse. 

“The sad part is I actually wanted to vote for it,” Caldier said. “I agree that for a man to remove a protective device and inadvertently get a woman pregnant — that is awful. That is absolutely awful. But at the same time, we also have to think about the other side.” 

To this argument, prime sponsor Rep. Liz Berry, D-Queen Anne, said a large part of this bill’s goal is to protect from sexually transmitted diseases. Non-physical forms of birth control, like birth control pills, do not offer disease protection, and so, are outside the scope of the bill.  

Berry also said the main goal of the bill is to protect women, and changing the bill could undermine that effort.

“Broadening the definition to beyond a physical barrier device would open up unintended consequences -- where this would be weaponized against victims of this nonconsensual act,” Berry said. “This is a very intentional definition that has been stakeholdered with key community advocates to protect people, particularly women, from this type of behavior.”

Critics also noted concerns with “establishing intentionality,” and proving allegations in court.  

“I have been involved in litigating some of these cases, and sometimes it comes down to somebody poking a hole in a condom to get pregnant,” said Rep. Peter Abbarno, R-Centralia. “It goes both ways in terms of how you can tamper, but a lot of this is unfortunately ‘He said, she said,’ or we don’t have any proof, or the proof has already been disposed of.”

Elizabeth Hendren, a Seattle-based attorney at the Sexual Violence Law Center, explained this is not a new issue in sexual assault litigations. 

Hendren said under Washington law testimony is a valid form of proof, as is considering the credibility of both parties. Hendren said proof can also sometimes be in emails, text messages and photos. 

Yet, concerns regarding the ‘He said, she said’ dilemma carried over into the floor’s debate. 

“When we pass laws, we need to be careful that they are enforceable and not ambiguous,” Rep. Cyndy Jacobson, R-Puyallup, said, as she urged a no vote.  “I think that what this may create, unintentionally, is a morass of he said, she said and things that we can't prove in court.” 

Penalties for those convicted of stealthing could result in statutory damages of up to $5,000 per violation, and prevailing plaintiffs would be awarded costs and compensated reasonable attorney fees.