Stealthing is a term that has repeatedly made its way into public discussion and the courtroom in recent months. However, stealthing itself is not a separate criminal offense. The question that repeatedly arises in the media and among judges is: To what extent is removing a condom during sexual intercourse a punishable act?
The legislature has not yet created a specific regulation for this. Consequently, one searches the StGB (German Criminal Code) and other statute books in vain for an offense that explicitly criminalizes stealthing. It therefore remains the task of the courts to decide to what extent actions related to stealthing constitute a crime. The fact is, however, that such actions have already reached the stage of indictment on several occasions. Most recently, even the Federal Court of Justice (BGH) commented on stealthing. You can find out exactly what the consequences of stealthing can be in this article.
Are you being accused? It is important to seek legal advice when facing a criminal allegation. Not only is a conviction a threat, but one’s own reputation is often endangered by an investigation. As an accused person, please feel free to contact our experienced sexual criminal law attorneys at any time. Our law firm will support you in your proceedings with the necessary discretion.
What does stealthing mean?
Stealthing describes the act of a male person secretly removing a condom during sexual intercourse, or not using one from the start, without the knowledge and consent of the sexual partner, even though protected intercourse with a condom was agreed upon.
The term stealthing is derived from the English word “stealth,” which means something like secrecy or cunning. As a verb, it refers to doing something cunningly or secretly. In German usage, this refers specifically to that secret act of stripping off or omitting a condom.
Crucial for potential criminal liability in stealthing is that the unknowing sexual partner has explicitly expressed the wish for protected sex (“safer sex”) and this wish is deliberately disregarded. The sexual partner must therefore be specifically deceived, even though they explicitly placed importance on the fact that it is protected sexual intercourse. Indifference regarding the use of a condom therefore generally rules out stealthing.
As a “perpetrator,” usually only a man who is supposed to use a condom is considered. However, the use of a female condom is also conceivable. Thus, the unknowing sexual partners can be both men and women. Stealthing can also occur during anal intercourse. This is also supported by the fact that the alleged reprehensibility arises not only regarding a possible unwanted pregnancy, which would be prevented by the use of a condom, but also or especially regarding the risk of infection with sexually transmitted diseases, which would also be prevented by the use of a condom.
To what extent is stealthing punishable in Germany?
There is no independent criminal offense for stealthing in the law. Rather, criminal liability for omitting a condom is a new development through case law. And the BGH also affirms criminal liability for stealthing if certain requirements are met.
A sexual assault (Section 177 (1) StGB) may occur if the other sexual partner consented to sexual intercourse only if a condom was used. It must therefore be recognizable to him or her that practicing safer sex is essential. In such a case, omitting or removing the condom would then go against the person’s recognizable will and thus constitute sexual assault. Indifference regarding the use of a condom is not sufficient to establish criminal liability.
It is irrelevant when the will is expressed or whether, for example, unprotected acts were performed beforehand, such as oral sex. Even in the midst of sexual acts, the will that a condom should be used can still be explicitly expressed. From the moment the will is expressed, further sexual intercourse is then only consensual on the condition that a condom is used, and stealthing may be punishable under certain circumstances.
If a sexually transmitted disease is transmitted through stealthing, a conviction for (negligent) bodily harm may also be considered.
Stealthing: Sexual Assault or Rape?
Furthermore, in certain cases, the BGH also affirms criminal liability for rape (Section 177 (6) StGB). Rape generally occurs when sexual assault involves penetration into the body of the other person. However, there has not yet been a specific decision by the BGH on this.
This means that, in principle, not only a conviction for sexual assault is possible, which carries a prison sentence of at least 6 months and up to 5 years, but also a conviction for rape, which carries a prison sentence of not less than 2 years.
If damage to health occurs through a sexually transmitted disease of the unknowing person, dangerous bodily harm may additionally be considered (Section 224 (1) No. 1 StGB). This carries a prison sentence of 6 months and up to 10 years.
A civil law claim by the injured party for pain and suffering is also not excluded. In the past, for example, an injured party was able to win a four-figure sum – even without bodily harm having occurred.
Accused persons should therefore be aware that such an allegation can have significant consequences. In addition to the criminal and civil law consequences of an investigation, there is also the reputational damage they may suffer. In case of doubt, this can have an even harsher impact than a conviction.
Accused of stealthing? What you should do now
Accused persons should always take an allegation of stealthing seriously. Be aware that it is a criminal offense that can be prosecuted with the full force of the law. Especially because a conviction for rape can also be a threat, you should not take the allegation lightly.
Furthermore: Do not make a statement to the police. By making a statement, you may incriminate yourself in case of doubt without realizing it, even if you are innocent. Instead, contact our experienced defense attorneys.
We will first cancel the interrogation appointment and request access to the files to review the status of the investigation. In the meantime, always exercise your right to remain silent and avoid contact with all parties involved, including the alleged victim.
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Our experienced and successful criminal defense attorneys provide comprehensive support and guidance for your case. Schedule an initial consultation with us as experts in sexual criminal law.
