Stealthing in Irish Law: Legal Solutions for a Unique Sexual Violation
| Pages | pp 95 - 120 |
| Published date | 12 July 2022 |
| Date | 12 July 2022 |
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Stealthing in Irish Law: Legal Solutions for a
Unique Sexual Violation
JACK HERON*
I. Introduction
In recent years, several attempts have been made in other jurisdictions to outlaw
– whether via criminal or tort law – the practice of ‹stealthing›. Stealthing is
the removal of a condom by the wearer during or immediately before sexual
intercourse, in circumstances where the other party does not consent to having
sexual intercourse without the use of a condom.1 is practice exposes the victim
to the risk of sexually transmitted infections (‘STIs’), a sense of violation, and in
many cases, a risk of pregnancy.2 Many commentators consider this to be sexual
assault, rape, or some sort of ‘rape-adjacent’ violation.3 As such, it is no surprise
that legislative eorts are being made to prevent it in other jurisdictions, and it is
something of a disappointment that no such discussion has emerged in Ireland.
is article analyses various options for outlawing stealthing in criminal and tort
law in this jurisdiction. Part II provides a brief overview of stealthing and its harms.
Part III examines stealthing through criminal law. is section will discuss the
background to and current state of the law pertaining to sexual oences, including
the jurisprudence on consent in rape oences, in doing so examining whether any
existing oences could provide a basis for the criminalisation of stealthing. Part IV
* BCL Law with Politics (NUI). e author would like to thank Jane Reddin for her comments on
an earlier dra, Caoimhe Donnelly for her constant support, and the team at the Hibernian Law
Journal for their able assistance throughout the editorial process. Any views or opinions expressed
in this article are the personal views and opinions of the author.
1 NY State Senate Bill S4401 (2019); Katie Mettler, ‘Wis. Lawmaker Wants To Outlaw
‘Stealthing’ – Non-Consensual Condom Removal – As Sexual Assault’ e Washington Post
(Washington DC, 17 May 2017) washingtonpost.com/news/morning-mix/
wp/2017/05/17/wis-lawmaker-wants-to-outlaw-stealthing-nonconsensual-condom-removal-
as-sexual-assault/> accessed 24 November 2021; Joe Hernandez, ‘California Is e 1st State
To Ban “Stealthing”, Non-Consensual Condom Removal’ NPR (7 October 2021)
www.npr.org/2021/10/07/1040160313/california-stealthing-nonconsensual-condom-
removal?t=1637772548081> accessed 24 November 2021.
2 Sophie Maullin, ‘Stealthing Isn’t a “S ex Trend”. It’s Sexual Assault – And It Happened To Me’ e
Guardian (London, 22 May 2017) https://www.theguardian.com/commentisfree/2017/may/22/
stealthing-sex-trend-sexual-assault-crime accessed 24 November 2021.
3 Maullin (n 2); Alexandra Brodsky, ‘Rape-Adjacent’: Imagining Legal Responses to Non-consensual
Condom Removal’ (2017) 32(2) Columbia Journal of Gender & Law 183; Maciej Bocheński
and Mateusz Żebracki, ‘Stealthing as a Form of Rape – Findings to Date and Future Prospects for
Research’ (2021) Problems of Forensic Sciences 29.
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examines the potential for a civil law approach to stealthing. Having demonstrated
in Part III and Part IV why the current criminal and civil frameworks do not
adequately outlaw stealthing, Part V will propose new criminal and civil legislative
provisions, the combination of which provide the basis for a tailor-made solution
to the problem of stealthing.
II. Stealthing
Stealthing is a sexual violation wherein one party is requested to wear a condom
during sexual intercourse as a precondition to another party’s consent to such
intercourse and the requested party does not comply with this request. It involves
an element of deception: the party removing or neglecting to wear a condom does
not inform the other party of this at all or until sexual intercourse is underway
or complete. According to research carried out by Kelly Cue Davis, participants
who reportedly engaged in stealthing with women were more likely to have been
diagnosed with an STI and to have a history of sexual aggression and hostility
towards women.4
e harms that stealthing visits upon the victim include the risk of pregnancy or
STI contraction. In addition to this, the law should also consider the emotional
impact of this violation of sexual autonomy on the people that experience it.
Alexandra Brodsky interviewed victims of stealthing in a ground-breaking 2017
article in the Columbia Journal of Law and Gender, nding that many of them felt
stealthing was a violation of their consent even if it did not necessarily constitute
rape: it was a ‘rape-adjacent’ violation.5 If Brodsky’s interviewees are representative,
the perpetrators of stealthing are aware of or at least reckless as to this feeling of
violation.6
It is necessary to outlaw stealthing because of the risks it poses to its victims as
outlined above. Even in the absence of any such risks, stealthing is a violation of
a victim’s sexual autonomy: the victim’s right to have ‘control over who touches
[their] body, and how’.7 Any such outlaw should aim to make a strong statement
that stealthing is a violation, not simply a ‘sex trend’, and to provide eective
remedies to victims of stealthing and enable them to pursue justice against their
violators.
4 Kelly Cue Davis, ‘“Stealthing”: Factors Associated with Young Men’s Non-consensual Condom
Removal’ (2019) 38(11) Health Psychology 997, 998–999.
5 Brodsky (n 3) 186–188.
6 Brodsky (n 3) 188–189. is awareness of the harms of stealthing by perpetrators can also be seen
in the context of deliberate HIV infection among men who have sex with men: see also Bocheński
and Żebracki (n 3) 31–34.
7 Nora Scheidegger, ‘Balancing Sexual Autonomy, Responsibility and the Right to Privacy: Principles
for Criminalizing Sex by Deception’ (2021) 22 German Law Journal 769, 770.
Stealthing in Irish Law: Legal Solutions for a Unique Se xual Violation 97
III. A Criminal Approach to Stealthing
Stealthing seems at rst glance an obviously criminal aair, given that it relates to
issues of consent to sexual intercourse. As such, it logically follows to look rst at
existing Irish sexual oences to see whether stealthing can be classied as a form
of rape or sexual assault. Introducing stealthing as a novel variation of an existing
criminal oence could be preferable to creating a new oence: rape and sexual
assault are established oences, whereas draing a new oence for a ‘rape-adjacent’
violation could introduce interpretive diculties. e following section will
examine the viability of current criminal oences to condone the act of stealthing
and how well they adequately address the harms posed by stealthing.
III.I. Rape
e long-established oence of rape has existed in Irish criminal law for centuries,
rst as a common law oence, then in statute. is oence was rst placed on
statutory footing in the nineteenth century,8 but now exists in a more modern
of rape is to have ‘unlawful sexual intercourse’ with a woman who at the time of
the intercourse does not consent to it. is is a relatively simple concept: only the
slightest penetration is necessary and ejaculation is not required.10 e mens rea is
to do so while either knowing of the lack of consent or being reckless as to whether
or not the woman consents. It is a defence to a charge of rape that the defendant had
a genuine belief, ‘grounded on circumstances which themselves have a foundation
in reality’, that the woman is consenting.11
(a) Consent and Historical Background
One of the key elements of the actus reus, the concept of consent, is in constant
ux. e concept of consent has evolved incrementally through case law as the
courts have examined particular factual scenarios. Consent has been consistently
dened by reference to what does not constitute consent, rather than by what
consent actually is. For example, it is clear that consent will not be present in a
situation where the victim has been deceived as to the nature or purpose of the
act in which she is engaging. If a victim believes that the perpetrator is performing
a necessary medical procedure rather than having sexual intercourse with her, her
consent to this will not constitute consent to sexual intercourse for the purposes
8 Oences Against the Person Act 1861, s 48.
9 Criminal Law (Rape) Act 1981, s 2.
10 Attorney General v Dermody [1956] IR 307.
11 e People (DPP) v CO’R [2016] 3 IR 222 [45].
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of the oence.12 Furthermore, consent will not exist where the perpetrator secures
the victim’s consent to sexual intercourse by impersonating the victim’s spouse.13
is is because the victim is not merely consenting to sexual intercourse under any
circumstances, but to sexual intercourse with a particular person. As such, sexual
intercourse with a dierent person goes beyond the boundaries of the victim’s
consent.
A dierent position emerges when it is clear to both parties that they are engaging
in sexual intercourse with each other, but where there is deception or fraud in
relation to some ancillary matter (henceforth ‘ancillary fraud’). In R v Linekar,14
the accused had sexual intercourse with a sex worker aer agreeing to pay £25 for
her services. He ed the scene aer the intercourse occurred without paying the
promised sum. e accused’s conviction was quashed on appeal because despite his
fraud (refusing to pay the agreed amount), the sex worker had consented to sexual
intercourse with him.15 e deception, therefore, related to an ancillary matter,
not the act of intercourse.16 is nding could have been inuenced by a judicial
unwillingness to condone the victim’s illegal trade, but it appears to have been
inuenced more by a desire to restrict the ability of fraud to determine questions
of consent: Morland J quotes approvingly a passage from the Fieenth Report of
the Criminal Law Revision Committee on Sexual Oences which states inter alia
that ‘[s]omewhere a line must be drawn’ in relation to this question.17 Furthermore,
in Papadimotropoulos v R,18 the accused misled the victim (who spoke little to no
English) into believing that they were married, when in fact they had merely given
notice to the registrar of marriages of their intention to marry. e two had sexual
intercourse while the victim was under the impression that they were married,
and the accused le the next morning and did not proceed with the marriage. In
sentencing the accused, Gavan Duy J held that the jury’s conviction indicated that
the victim ‘never would have consented to intercourse at all except for the fact that
she believed she was giving her husband his lawful rights in doing so’.19 However,
the High Court of Australia overturned the conviction on the basis that this was
merely fraud as to inducement to sexual intercourse, not fraud as to the act itself,
and as such it did not vitiate the victim’s consent.
12 See R v Williams [1923] 1 KB 340 and R v Flattery [1887] 2 QB 410 for examples of this type of
conduct.
13 Criminal Law Amendment Act 1885, s 4; R v Dee (1884) LRI 468. is was extended to
impersonation of the victim’s boyfriend in R v Elbekkay [1994] EWCA Crim 1.
14 [1995] QB 250.
15 ibid 261.
16 Peter Charleton and Paul Anthony McDermott, Criminal Law and Evidence (2nd edn,
Bloomsbury 2020) 567.
17 Linekar (n 14) 255.
18 [1957] HCA 74. A similar set of facts was found not to constitute rape in Canada in State of
California v Skinner (1924) 33 Brit Colum Rep 555.
19 ibid.
Stealthing in Irish Law: Legal Solutions for a Unique Se xual Violation 99
is distinction between fraud as to the nature and purpose of the act versus
ancillary fraud, and the case law that enumerates same, has never formally been
adopted in Ireland, possibly because the Irish courts appear never to have considered
this question. However, English case law on the subject, such as R v Williams,20 is
cited by the Law Reform Commission as reecting the state of the law in Ireland
and as case law of the superior courts in the UK and Australia, these cases have
persuasive authority in Ireland.21 erefore, whether stealthing falls within the
classication of rape will depend on whether the removal of the condom constitutes
a change in the nature or purpose of the act of sexual intercourse, sucient to
invalidate consent. Linekar and Papadimotropoulos suggest the view that deceptive
conduct surrounding sexual intercourse is not susceptible to criminal conviction
unless it changes the victim’s understanding of the act they are engaging in. is
is a restrictive view and one which could prevent the admission of stealthing as a
form of rape. It is unlikely that representations as to the use of a condom go to the
nature and purpose of the act, given that both parties understand they are engaging
in sexual intercourse, and as such the historical position on ancillary fraud could
prevent stealthing from being classied as rape. is is especially the case given the
apparent reluctance in Linekar to extend the role of fraud beyond the limits which
existed at the time.22
(b) Statutory Development on Consent
Whilst the historical case law prevents stealthing from being classied as rape, a
recent statutory development provides potential scope for widening the denition
of consent. e relevant statutory update in this area is the Criminal Law (Sexual
Oences) Act 2017 (the ‘2017 Act’), which introduces a number of new oences
relating to sexual interaction with children and other protected persons.23 Notably,
section 48 of the 2017 Act places on a statutory footing many of the common
law statements about consent by amending section 9 of the Criminal Law (Rape)
(Amendment) Act 1990 (the ‘1990 Act’). e new section 9(1) states that ‘a person
consents to a sexual act if he or she freely and voluntarily agrees to engage in that
act’, for the rst time creating a positive denition of consent in Irish law. McGovern
argues that it would have been better if section 9(1) included the word ‘choice’ in
relation to consent, as in the UK denition,24 but believes that the words ‘freely and
20 Williams (n 12).
21 Law Reform Commission, Report on Knowledge or Belief Concerning Consent in Rape Law (LRC
122-2019) 26–30. Charleton and McDermott (n 16) further seem to accept these cases as the state
of the law; see point (5) at 576.
22 Linekar (n 14) 255, 258.
23 Other changes were included in the Criminal Law (Sexual Oences) (Amendment) Act 2019, but
these relate to sentencing and are not relevant for the purposes of this article.
24 Sexual Oence Act 2003, s 74 states ‘For the purposes of this Part, a person consents if he agrees by
choice, and has the freedom and capacity to make that choice’.
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voluntarily’ in the Irish statute may be interpreted in the same way.25 Sections 9(2)
to 9(5) of the 1990 Act consider situations where consent is not present. Section
9(2) restates a number of common law propositions about consent, for example
that a person cannot consent if they are asleep or unconscious.26 Importantly,
section 9(3) explicitly provides that the section ‘does not limit the circumstances in
which it may be established that a person did not consent to a sexual act’.
An analysis of the existing case law and legislation on rape as it applies to stealthing
would be incomplete without a consideration of this new denition of consent.
McGovern contends that the courts may consider the issue of consent under the
section 9(1) criteria of free and voluntary engagement, even if none of the existing
grounds in section 9(2) have been established.27 Section 9(2) notes that a person
does not consent where they are mistaken as to the nature and purpose of the act,
placing on statutory footing the historical position of the case law. In the case of
stealthing, under McGovern’s contention, the courts would be free to consider
whether there is free and voluntary consent, as set out in section 9(1), even if
there was no mistake as to the nature or purpose of the act. Ordinarily, if there
was no fraud as to the nature or purpose of the act, the courts would be restricted
by the ancillary fraud doctrine. However, section 9(1) allows them to hold that
consent was not freely or voluntarily given in any instance, including in the case of
stealthing.
Additionally, McGovern argues that deception in relation to HIV status
would not meet the section 9(1) standard of free and voluntary agreement, and
therefore it cannot be said there was consent in such cases.28 e same analysis
can be applied to stealthing: deception is a key element of stealthing – the clue
is in the name.29 Deception, in McGovern’s view, can constitute a barrier to free
and voluntary agreement to a sexual act. e same can be said with regard to the
deception in stealthing. e purpose of the deception is to prevent consent from
being withdrawn before sexual intercourse has occurred, because the perpetrator
is aware that use of a condom is expected but does not wish to comply with this
expectation. As such, it is designed to prevent the other party from discovering that
the act which is occurring (unprotected sexual intercourse) is dierent to that to
which consent was originally given (sexual intercourse with the use of a condom).
is is clearly contrary to the language of the 2017 Act, which requires that a
person ‘freely and voluntarily [agree] to engage in’ a sexual act in order to consent
to that act. It is submitted that free and voluntary engagement to a course of action
is impossible without being aware of the essential nature of that course of action,
25 James McGovern, ‘Consent to Sexual Intercourse and Non-disclosure of HIV – Deception and
Reliance Key for Consent to be Vitiated’ (2018) 28(3) Irish Criminal Law Journal 72, 78.
26 Criminal Law (Sexual Oences) Act 2017, s 9(2)(b). e common law position is stated in R v
Malone [1998] 2 Cr App R 447.
27 McGovern (n 25) 74.
28 McGovern (n 25) 75.
29 Davis (n 4) 997.
Stealthing in Irish Law: Legal Solutions for a Unique Se xual Violation 101
including the likely risks that may accompany it. It is also impossible to ‘agree’ to a
particular course of action – sexual intercourse without a condom – if a participant
is unaware that it is occurring.
e 2017 Act makes it possible for stealthing to fall within the category of rape by
allowing the courts to consider the criteria of consent in section 9(1), overcoming
the limits in the historical case law outlined above. However, whilst it allows the
court this freedom, it does not mean the court will adopt this position. It cannot
be said with any certainty what the Irish courts would make of a stealthing case
under this heading, given that the new section 9(1) language has not been tested.
Charleton J seems to suggest in DPP v FE that the 2017 Act simply ‘places
consent on a statutory footing,30 replicating common law principles’ without
engaging with the new positive denition of consent.31 e trial judge in DPP v
JLP included the new language in his directions to the jury in that case,32 stating
that ‘consent […] must be freely or voluntarily given in the ordinary sense of those
words’ and that consent is a voluntary agreement’ in respect of which a ‘knowledge
of the facts material to the acts consented to’ is required.33 However, on appeal,
Kennedy J for the Court of Appeal stated that section 9 ‘places well-recognised
common law principles on a statutory footing’ without any reference to the new
language.34 Bearing in mind this lack of discussion of the new language in section
9, it cannot be said with certainty that the courts will nd consent was not freely
and voluntarily given in a case of stealthing. e inherent obstacle is the scope of
fraud in the original case law. As such, expanding the concept of fraud may be an
alternative path to classifying stealthing as rape. is can be done by examining the
approach taken by foreign courts.
(c) English Approach – Widening the Concept of Fraud
Although the older case law expresses a restrictive view on the concept of fraud in
sexual oences,35 more recent cases in England have taken a wider view of fraud.
ese cases primarily deal with undisclosed risks regarding STI contraction or
fertility. It is instructive to examine the approach taken to these cases due to the
factual similarities they share with instances of stealthing. e most well-known
case in this area is R v Dica,36 in which the defendant had sexual intercourse with
two victims without disclosing his HIV-positive status. In each case, the victims had
agreed to unprotected sexual intercourse. e English Court of Appeal held that
the victims were in essence consenting to a dierent act, namely sexual intercourse
30 e People (DPP) v FE [2019] IESC 85.
31 ibid [42].
32 Director of Public Prosecutions v Jose Lacerna Pe na [2022] IECA 15.
33 ibid [41].
34 ibid [59]. In any event this case was not concerned with expanding the denition of consent.
35 As represented by Linekar (n 14) and Papadimotropoulos (n 18).
36 [2004] QB 1257.
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without the possibility of contracting an STI, than that which occurred. Despite
this, Dica and the cases that followed it in England do not establish that deception
or non-disclosure of HIV status prior to sexual intercourse in any way vitiated the
consent to that sexual intercourse.37 e deception meant that the defendant could
not use consent as a defence to a charge of inicting bodily injury under section 20
of the Oences Against the Person Act 1861. However, since the victims in Dica
consented to sexual intercourse, the defendant was not guilty of rape despite the
deception.38
is has changed somewhat in recent years. In 2011, the English Divisional Court
in Assange v Sweden held that the appellant’s non-use of a condom when having
sexual intercourse with the victim, despite her express request that a condom be
used, did violate her consent.39 is did not result in a conviction for rape because
the issue at hand was whether dual criminality had been established for the purposes
of a European Arrest Warrant relating to the appellant, and it was not considered
on appeal,40 but it may still open a possibility for stealthing to be considered rape
in England.
Subsequently, the Court of Appeal held in R v Lawrance that an increased risk of
pregnancy – resulting from the defendant falsely representing to the victim that
he had undergone a vasectomy and was thus infertile – was not sucient to vitiate
consent.41 e court in Lawrance acknowledged the nding in Assange but believed
that since the victim in Lawrance (unlike in Assange) had agreed to unprotected
sexual intercourse ‘without imposing any physical restrictions’, her freedom to
choose whether to engage in the sexual intercourse which occurred had not been
removed despite the deception.42 However, the acknowledgment of Assange
in Lawrance is likely obiter dicta and thus the nding in the Divisional Court in
Assange has still not been considered by a higher court. It is therefore possible that
English case law may consider stealthing to be rape, though this proposition rests
on the untested precedential value of Assange.
e English courts have focused on the act itself and have in one case held that
the non-use of a condom changes that act. In order for stealthing to be classied
as rape in Ireland, the Irish courts could rely on Assange as authority that the fraud
involved in stealthing changes the nature of the act, thereby making the act non-
consensual. e likelihood of this, however, is dicult given the legal status of
Assange and there is no guarantee that an Irish court would follow Assange over the
Court of Appeal’s decision in Dica.
37 See also R v B [2007] 1 WLR 1567; R v Konzani [2005] EWCA Crim 706.
38 R v Dica (n 36) 1268.
39 Assange v Sweden [2011] EWHC 2849 (Admin).
40 Assange v Sweden [2012] UKSC 22.
41 R v Lawrance [2020] 1 WLR 5025, 5034.
42 ibid.
Stealthing in Irish Law: Legal Solutions for a Unique Se xual Violation 103
(d) Canadian Approach – Consequences of Fraud
In Canada there has been no crime of rape since the 1980s, it having been replaced
by various categories of sexual assault.43 It is worth noting however that the
Canadian sexual assault oences have a similar denition of consent to the new
Irish denition, namely ‘the voluntary agreement of the victim to engage in the
sexual activity in question’.44 With regard to consent, the focus in Canada has been
on the consequences of sexual intercourse.
It was previously established in R v Cuerrier that fraud does not vitiate consent to
sexual touching unless there is also a serious risk of signicant harm.45 e ultimate
authority is Hutchinson v R,46 decided by the Supreme Court of Canada in 2014.
e victim in Hutchinson consented to sexual activity with her male partner with
the use of a condom to prevent pregnancy. However, unbeknownst to her, the
defendant poked holes in the condom and the victim became pregnant.47 e trial
judge agreed with the victim’s contention that she did not consent to unprotected
sex and convicted the defendant of sexual assault. is conviction was upheld in
the Supreme Court of Canada, with the majority making the following statement
which is worth quoting in full:
e concept of ‘harm’ does not encompass only bodily harm in the traditional
sense of that term; it includes at least the sorts of profound changes in a
woman’s body — changes that may be welcomed or changes that a woman
may choose not to accept — resulting from pregnancy. Depriving a woman of
the choice whether to become pregnant or increasing the risk of pregnancy is
equally serious as a ‘signicant risk of serious bodily harm’ within the meaning
of Cuerrier, and therefore suces to establish fraud vitiating consent under
s. 265(3)(c).48
Other Canadian cases have followed Hutchinson and endorsed this principle.49
It is possible that the dierent labels given to the relevant oences in Ireland and
Canada – given the presence in Irish law of an oence of sexual assault which is
distinct from rape – may cause diculties in applying this case in Ireland, but the
similarities suggest that Hutchinson is still relevant to the present discussion.
43 For more information see Kwong-Leung Tang, ‘Rape Law Reform in Canada: e Success and
Limits of Legislation’ (1998) 42(3) International Journal of Oender erapy and Comparative
Criminology 258, 260. e new oences are to be found in sections 271, 272 and 273 of the
Criminal Code of Canada.
44 Section 273.1, Criminal Code of Canada.
45 R v Cuerrier [1998] 2 SCR 371, [135].
46 [2014] SCC 19.
47 ibid [2].
48 ibid [70].
49 For example: R v JJT [2017] ONCJ 255; R v Lupi [2019] ONSC 3713; R v Rivera [2019] ONSC
3918; R v Kirkpatrick [2020] BCCA 136; R v Tait [2021] CM 2013.
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Hutchinson opens the possibility of stealthing falling within the oence of rape
by introducing a requirement of signicant harm for fraud to vitiate consent. e
principal question then is what kinds of risk or consequence are suciently serious
to vitiate consent in the context of stealthing. If one follows the Canadian case law,
then clearly a high risk of contracting HIV should qualify. However, it is not clear
whether this should also apply to a high risk of contracting a dierent STI such
as herpes,50 or a more curable one such as chlamydia. is case law suggests that a
suciently minute risk of contracting HIV might not operate to change the nature
of the act and thus vitiate consent.51 is then becomes a question of the likelihood
of the risk combined with the seriousness of its consequences, rather than a simple
qualitative analysis. It is logical, and indeed necessary, to require a high probability
of contracting an STI and to require that the defendant be aware of this high
probability and not inform the victim of it. In the absence of foreknowledge as to a
heightened risk, and deception in relation to same, there is no basis for culpability
even where infection occurs: the fact that one party has contracted an STI is
deeply unfortunate for that party, yet it is not capable of rendering the other party
criminally responsible.
Stealthing also poses the potential risk of pregnancy. Pregnancy was established as
a risk sucient to vitiate consent in Hutchinson,52 but it is worth discussing this
question in detail for the benet of the Irish courts. e law has historically been
hesitant to view pregnancy and childbirth as risks to be avoided from a policy
perspective,53 but it is an undeniable fact that even with the aid of modern medicine,
pregnancy still carries a number of signicant risks.54 Moreover, it is usually not
possible to assess the level of risk at the point of conception: unless a person knows
from previous experience or genetic predisposition that they are very likely or
certain to experience serious health risks as a result of becoming pregnant, this is
a question that will arise at some point into a pregnancy rather than at its outset.55
50 R v Golding [2014] EWCA Crim 889: the Court of Appeal upheld a conviction for inicting
bodily injury where the defendant had infected the victim with herpes.
51 In R v Mabior [2012] 2 SCR 584, McLachlin CJ stated that a low, as opposed to an undetectable,
viral load would still violate consent unless a condom was used. However, she sug gested obiter that
an undetectable viral load might not violate consent, if the evidentiary diculties in proving such
could be surmounted. Hughes suggests that a person should need to be aware that they have an
undetectable viral load before being able to use it as a defence: see David Hughes, ‘Condom use,
viral load and the type of sexual activity as defences to the sexual transmission of HIV’ (2013)
Journal of Criminal Law 77(2) 136, 140–141.
52 Hutchinson (n 46) [70].
53 McFarlane v Tayside Health Board [2000] 2 AC 59.
54 See Nicolette Priaulx, ‘Joy to the World! A (Healthy) Child is Born! Reconceptualizing “Harm” in
Wrongful Conception’ (2004) Social and Legal Studies 13(1) 1, 8–11 for a critical interrogation
of the law’s tendency to view the birth of a healthy child as an uncomplicated good, even when as
a result of an unintended or unplanned pregnancy.
55 is article refers to ‘pregnant people’ rather than ‘pregnant women’ not to erase the reality that
most victims of stealthing are women, but to recognise that it is possible for a transgender man
or non-binary person to become pregnant despite not being a woman, especially given the legal
recognition of this reality (for transgender men, at least) in the Gender Recognition Act 2015.
Stealthing in Irish Law: Legal Solutions for a Unique Se xual Violation 105
Even where there is no extraordinary risk to the physical health of the pregnant
person, pregnancy can be highly traumatic and have lasting physical and mental
eects.56 When the condition of pregnancy is forced upon someone the law must
not overlook the risks that the victim is now subject to by virtue of the pregnant
condition that has been imposed upon them. Combined with the fact that the
risk of pregnancy increases when a condom is not used, there is a meaningful case
to be made that an increased risk of pregnancy that is not consented to could be
sucient to vitiate the victim’s consent. In addition to this, Davis explains that
the ‘surreptitious nature of this behaviour’ mean that victims of stealthing are not
aware that they are victims until aer the violation occurs and possibly not for a
signicant period of time aerwards.57 If the victim has indeed become pregnant
as a result of stealthing, they may lose the opportunity to avail of emergency
contraceptive solutions and may thus be required to avail of termination services if
they do not wish to continue with the pregnancy. Due to the advent of the Health
(Termination of Pregnancy) Act 2018, this no longer forces the victim to commit
a criminal oence or to incur signicant expense in travelling to another country
to obtain a termination. However, it is still traumatic to force an individual into a
situation where they must choose between obtaining a termination or carrying to
term the child of someone who has violated them, particularly given the strict time
limits on availing of termination services and the risks of pregnancy.
In addition to the risks of STI contraction and pregnancy, as noted in Part II
the law should also consider the harm of the emotional impact of this violation
of sexual autonomy on the people that experience it. However, it is unlikely this
harm alone would be considered sucient enough to vitiate consent, on the basis
that such violation is a common factor with other forms of rape. Basing consent
on the possible consequences of stealthing is also problematic in cases of stealthing
that do not contain the risks discussed, such as STI contraction or pregnancy,
and for which the main harm is the violation itself. Even in those cases where STI
contraction and pregnancy are a risk, as outlined above, problematic questions arise
as to the probability and gravity of such risks, which might unfairly protect victims
in some cases over others, despite all victims experiencing the harm of the violation
itself.
(e) Conclusions on Stealthing as a Form of Rape
To bring stealthing within the scope of rape would provide immediate recourse to
victims under the current criminal law. Additionally, the similarities between rape
56 is litany of risks is not intended to infantilise pregnant people. It is also not intended to consider
people of unsound mind, incapable of assessing the risks of pregnancy when making a decision to
become pregnant, or to not terminate an unintentional pregnancy borne out of consensual sexual
intercourse.
57 Davis (n 4) 999.
106
and stealthing, namely the act of sexual intercourse and the lack of consent, with the
latter concerned with a lack of consent as to condom removal, suggest the oence
of rape would adequately accommodate the problem of stealthing. e principal
obstacle, however, is whether the current law would recognise stealthing as a
form of rape. As outlined, the major roadblock here is the judge-made distinction
between ‘fraud as to the nature of the act’ and ancillary fraud. It is unlikely that
representations as to the use of a condom go to the nature and purpose of the act,
given that both parties understand they are engaging in sexual intercourse, and as
such the fraud in stealthing would not be enough to vitiate consent.
However, the new positive denition of consent introduced by the 2017 Act would
seem to provide a basis for bringing stealthing within the oence. e 2017 Act
allows the courts to overlook the limits of the traditional common law position by
considering solely the criteria of consent in section 9(1). As such, the courts would
be able to hold that there was a lack of consent in cases of stealthing. However, the
wording in section 9 is unclear and the courts have not yet had cause to explore its
potential for expanding the scope of consent. e courts so far seem to have viewed
it as merely a restatement of the common law position and have not accounted
for the new language in section 9(1). ere is of course a possibility that this
will change, but for now its potential for expansion has not been explored fully,
as seen in DPP v FE58 and DPP v JLP.59 e lack of judicial consideration of the
new language in section 9(1) is problematic and creates uncertainty around any
reconsideration of the existing position on fraud.
Alternatively, the list of situations where consent is absent can be expanded, by
adopting the approach of foreign courts. Assange v Sweden established in England
that stealthing constitutes fraud as to the nature of the act, side-stepping this
roadblock entirely, though the persuasive value of Assange in this jurisdiction
remains uncertain. It is entirely possible that an Irish court could decline to follow
either Assange or Hutchinson, instead relying on the higher persuasive value of the
English Court of Appeal’s decision in Dica.
Additionally, Canadian cases have shown a judicial tendency to allow a sucient
risk coupled with serious consequences to vitiate consent,60 thus expanding the
notion of fraud in consent. e combination of the risk factors associated with
stealthing – STI contraction, pregnancy and deception – make a compelling case
for stealthing to fall within the same category as the Canadian cases, through a
judicial expansion of the concept of consent. However, the problem with relying
on consequences such as pregnancy and STI contraction to vitiate consent is that
if none of those consequences has any realistic chance of actually occurring, the
justication for a more expansive concept of fraud as to consent disappears with
them. Such situations are not dicult to imagine and they make it potentially
58 DPP v FE (n 30) at [42].
59 DPP v JLP (n 32) at [59].
60 Hutchinson (n 46); R v Mabior (n 50).
Stealthing in Irish Law: Legal Solutions for a Unique Se xual Violation 107
dicult to rely on the Canadian approach. Pregnancy is not a risk where either
party is infertile or where neither party has a uterus; STI transmission is not a risk
where neither party has an STI and it is entirely possible that all parties concerned
would be aware of the lack of risks before engaging in sexual intercourse. As such,
the only grounds for criminalisation that remain are the fact of the violation itself
rather than any of its consequences: in other words, the infringement of the victim’s
sexual autonomy or right to have ‘control over who touches [their] body, and
h ow ’. 61 e violation by itself may not be enough to justify expanding the concept
of fraud.
Having considered possible ways to overcome the roadblack, it is clear that
these alternatives, namely the 2017 Act, the English approach and the Canadian
approach, do not provide a denitive guarantee that stealthing may be considered
a form of rape in Ireland. Additionally, each of these alternatives present their own
diculties, such that it is worth reconsidering whether pigeon-holing stealthing
into the category of rape does in fact provide sucient protection for victims.
Even if the Irish courts were to follow an approach that poses fewer diculties,
it is also worth acknowledging commentary that argues that stealthing should
not constitute rape: Scheidegger argues that the term should be reserved for only
‘the most serious violations of sexual autonomy’,62 and Colb argues that while the
law should have ‘something to say’ about stealthing, it does not constitute rape by
deception.63 As such, it would be prudent to examine alternative ways of imposing
legal consequences for stealthing.
III.II. Section 4 Rape
e oence of common law rape in section 2 of the 1981 Act now exists alongside
scope of rape beyond sexual intercourse. e oence, known colloquially as ‘section
4 rape’, covers sexual assaults that include penetration of the anus or mouth by the
penis, or penetration of the vagina by an object held or manipulated by another
person.64 e oence is gender-neutral.
Despite its name, section 4 rape is in law a particular kind of sexual assault, rather
than a form of rape akin to section 2 of the 1981 Act. However, among the changes
to section 9 introduced by the 2017 Act was the provision that consent relates to
61 Scheidegger (n 7) 770.
62 Scheidegger (n 7) 783.
63 Sherry F Colb, ‘“Stealthing”: Is Secret Condom Removal Akin to Sexual Assault?’ Justia (10 May
2017)
assault> accessed 18 April 2022.
64 e policy reasons for this are elaborated at Law Reform Commission, Report on Rape and Allied
Oences (LRC 24-1988), [14].
108
‘sexual acts’, which explicitly includes section 4 rape.65 As such, the caveats discussed
earlier in relation to the new section 9 language and its potential application to
stealthing cases, apply equally to section 4 rape. It also must be noted that section
4 rape does not involve sexual intercourse and as such there is no risk of pregnancy
and in cases of object penetration there is limited risk of STI contraction. Section
4 rape is therefore not the most suitable oence to reect the unique harms of
stealthing.
III.III. Sexual Assault
aggravated sexual assault, both of which are silent as to the gender of the perpetrator
and victim. In this respect they are gender-neutral, unlike the oence of common
law rape, which historically could only be committed by a man.66 Sexual assault
replaces the old oence of indecent assault and as such its elements are not listed
in the section. Charleton and McDermott helpfully enumerate them as follows:
(1) e accused intentionally assaulted the victim; (2) the assault, either in itself or
combined with the surrounding circumstances, is proved to be indecent according
to the contemporary standards of right-minded people, and (3) the accused
intended to commit such an assault as is referred to in (2).67 An aggravated sexual
assault is a sexual assault that involves serious violence or the threat of same or is
such as to cause injury, humiliation or degradation of a grave nature to the person
assaulted.68 Section 2 and section 3 assist in preventing perpetrators of sexual
oences from availing of any shortcomings of common law rape or section 4 rape.
It seems for example unlikely that either of the rape oences would include digital
penetration,69 but such would more easily fall under the scope of sexual assault or
aggravated sexual assault, depending on the circumstances.
If a judicial reconsideration of the concept of consent in common law rape is not
forthcoming, but criminalisation is still considered to be necessary, stealthing
could be classied as a form of sexual assault under these oences. An assault is
by denition intentional touching without consent.70 It is not clear that the same
65 Criminal Law (Rape) (Amendment) Act 1990, s 9(6).
66 e courts’ perception of this may soon change. e Gender Recognition Act 2015 does not mandate
any surgical intervention as a prerequisite for legal gender change and so it is now entirely possible for
the oence of common law rape to be committed by a person who is legally classied as female but
who has a penis. Either statutory amendment or creative interpretation may be necessary here, as the
1981 Act provides in section 2 that ‘a man commits rape’ rather than ‘a p erson commits rape’, and so a
technical issue may arise in respect of the prosecution of an individual who has availed of the process
under sections 8 or 12 of the Gender Recognition Act 2015.
67 Charleton and McDermott (n 16) 593.
68 Criminal Law (Rape) (Amendment) Act 1990, s 3(1).
69 Although it is not impossible that this may be included: see T J McIntyre, Sinéad McMullan and
Seán Ó Toghda, Criminal Law (Round Ha ll 2012) 144.
70 Charleton and McDermott (n 16) 593.
Stealthing in Irish Law: Legal Solutions for a Unique Se xual Violation 109
complex distinctions in relation to consent in rape apply to consent in relation to
an assault or sexual assault, and as such a judicial reconsideration of consent as it
applies to rape may not be necessary for stealthing to be classied as sexual assault.
Section 2 will in most circumstances be more relevant than section 3, given the
additional requirements in relation to the latter that may not be applicable to all
instances of stealthing. e real benet of section 2 as an oence is that it does
not concern itself with the consequences of the assault, merely with the fact of
the violation, and as such it avoids the diculties with the Canadian approach
to rape where consequences like a risk of pregnancy or STI contraction cannot
be established. Section 3 presents more diculties as it imposes additional
requirements beyond the violation itself, but based on Brodsky’s research it may be
possible to say that non-consensual condom removal causes grave humiliation to
the victim, even where there is no ‘injury’ in the form of possible STI contraction.71
Stealthing oen carries with it a number of risks that are more common in rape
cases than sexual assault cases, due in large part to the role of penetration in both
rape and stealthing. is dierence can theoretically be reected at the sentencing
stage by imposing the maximum penalty of ve years more frequently for instances
of stealthing, were it to be considered a form of sexual assault. Stealthing could
attract a higher penalty than common forms of sexual assault such as groping
because of the increased risk to the victim (in terms of pregnancy and possible
contraction of STIs) over and above the emotional and physical harm caused by
the assault itself. is is of course not intended to trivialise the real emotional and
physical harm caused by more commonly observed kinds of sexual assault, but it is
important to recognise the increased risks involved with stealthing.
Bringing stealthing under sexual assault rather than rape might have the eect
of better reecting the ‘rape-adjacent’ nature of the violation experienced by
Brodsky’s interviewees.72 However, due to the increased risks of pregnancy and STI
contraction present in stealthing, the fact that section 2 sexual assault is capped
at a maximum penalty of ve years’ imprisonment may not adequately recognise
these increased risks. Meanwhile, section 3 allows a sentence of life imprisonment,
which is usually only reserved for the most serious cases of rape73 – given the ‘rape-
adjacent’ nature of stealthing, this may not be appropriate. On a practical level, it
is easier to t stealthing within the parameters of sexual assault than it is to predict
the courts’ attitude to the existing jurisprudence on rape, and so either section
2 or section 3 is a more pragmatic answer to stealthing than the oence of rape.
However, just because stealthing may come within the scope of these oences
does not necessarily mean they will provide adequate protection for victims of
stealthing. It is necessary to consider the existence of a better solution, which will
be discussed in Part V.
71 Brodsky (n 3) 185–187 and generally.
72 Brodsky (n 3) 188.
73 Charleton and McDermott (n 16) 631.
110
III.IV. Can Existing Irish Sexual Oences Accommodate Stealthing?
It seems clear from the above analysis that there are problems with accommodating
stealthing within the current sexual oences. Section 2 sexual assault may not be
able to adequately reect the unique risks that come with stealthing as a result of
penetration and section 3 does not seem to t the ‘rape-adjacent’ nature of the
violation. With regard to rape, it is not clear how the courts would apply the 2017
Act and there is every likelihood they will simply continue to follow the traditional
common law position. It is also uncertain how Irish courts would approach the
jurisprudence on rape from England and Canada, and thus stealthing may not t
into this category either: there is too much uncertainty around fraud and consent
to propose this as a workable solution without relying signicantly on the unknown
views of the courts. Furthermore, it would not be up to the courts to fashion a
new criminal oence as the creation of new criminal oences is rightly considered
a matter for the Oireachtas,74 and stealthing may be thought too dierent from
either rape or sexual assault for the courts to be the sole arbiters of its criminality.
As such, it should be considered whether an approach rooted in the law of torts
might be a more appropriate way of outlawing stealthing in this jurisdiction.
IV. A Civil Approach to Stealthing
e law of torts is principally concerned with the provision of compensation and
the adjudication of private disputes. e criminal law has a greater public dimension
and is concerned with the regulation of conduct, the maintenance of social order
and the imposition of penalties. However, there can be an overlap between the two
areas.75 Existing case law has demonstrated that the distinction between matters
that are properly criminal and properly tortious can be dicult to determine.76
As such, it would be remiss not to consider the advantages and disadvantages of
dealing with stealthing as a tort rather than as a criminal oence.
Brodsky provides an interesting case for an approach to stealthing that is rooted
in the law of tort.77 e tort approach gives the victim considerably more control
over the proceedings, including whether to initiate proceedings at all, what case to
make, and what evidence to submit. Even if the damages recovered are small, the
chance to confront the perpetrator in a context where the victim has more control
and an equal right to be represented can be therapeutic in itself.78 is control is
74 Charleton and McDermott (n 16) 6.
75 Brian McMahon and William Binchy, e Law of Torts (4th edn, Bloomsbury 2013) [1.10].
76 Per Kingsmill Moore J in Melling v Ó Mathghamhna [1962] IR 1: ‘What is a crime? e anomalies
which still exist in the criminal law and the diversity in statutes make a comprehensive denition
almost impossible to frame’. While the distinction may have become clearer since Melling, the
exact boundaries of a ‘crime’ in Irish law are by no means certain or xed.
77 Brodsky (n 3) 198–202.
78 Bruce Feldthusen, ‘e Civil Action for Sexual Battery: erapeutic Jurisprudence?’ (1993)
Ottawa Law Review 25(2) 203, 211.
Stealthing in Irish Law: Legal Solutions for a Unique Se xual Violation 111
infamously lacking in criminal prosecutions of sexual oences and the solutions
that have been proposed to remedy this – limitations on sexual history evidence,
giving the victim their own legal representative for part of the proceedings – do not
remedy the central problem of the proceedings being ultimately at the behest of
the State rather than the victim.79 e Victims’ Rights Directive,80 which provides
much-needed support and information rights to victims, falls short of giving
victims the kind of control they would have in civil proceedings. It is clear that the
prosecution of sexual oences is a harrowing experience that can fail to provide
signicant vindication to victims,81 in part because of this lack of control.
However, this lack of control is not necessarily something that can be remedied in
its entirety short of providing an entirely dierent criminal justice process for sexual
oences, something which is outside the scope of this article. Furthermore, the tort
approach is not without its faults. Firstly, for some victims, the acknowledgment of
the harm done to them may not be sucient if the defendant is held civilly rather
than criminally responsible for that harm. It is also signicant that the civil burden
of proof is considerably lower than its criminal counterpart. is lower burden in
civil cases is typically counterbalanced by the fact that being found liable for the
commission of a tort does not (unlike in criminal cases) carry with it the possibility
of imprisonment and, in the case of sexual oences, an obligation to register as a sex
oender. ese countervailing factors would also exist in respect of a stealthing tort,
but there are issues with comparing stealthing to most ordinary torts. Ordinarily,
torts and criminal oences deal with incidents of a very dierent moral quality
and stealthing has, it is submitted, a very dierent moral quality to nuisance,
defamation or even serious negligence. In the eyes of the public, a violation such as
stealthing can bring serious reputational damage akin to a conviction for a sexual
oence, regardless of whether it is a crime or a tort. is may justify a higher burden
of proof than is available outside of the criminal law.
It is entirely possible that no matter whether stealthing is classied as a tort or a
crime by lawyers, the reputation of someone against whom even an unsuccessful
prosecution or civil claim for stealthing is brought, will be damaged signicantly.
is is an accepted part of how the criminal law deals with sexual oences and
relevant safeguards are in place.82 No such safeguards exist in the civil law at present,
and as a result a civil approach to stealthing may be highly controversial and
79 Dublin Rape Crisis Centre, ‘Submission to Joint Committee on Justice on the topic of Victim’s
Testimony in Cases of Rape & Sexual Assault’ (26 February 2021, accessed at https://www.drcc.
ie/assets/les/pdf/drcc_submission_to_joint_oir_cte_justice_on_victim_testimony_feb_2021.
pdf ) 8–9.
80 As implemented in Ireland through the Criminal Justice (Victims of Crime) Act 2017.
81 Dublin Rape Crisis Centre (n 80) 4–6. See more generally Peter Charleton and Orlaith Cross,
‘Towards a Presumption of Victimhood: Possibilities for Re-Balancing the Criminal Process’
(2021) Irish Judicial Studies Journal 5(2) 1.
82 Working Group Examining Protections for Vulnerable Witnesses in the Investigation and
Prosecution of Sexual Oences, Review of Protections for Vulnerable Witnesses in the Investigation
and Prosecution of Sexual Oences (2020) 48–49.
112
dicult to implement, despite the denite advantages it would bring for victims.
is author believes that the benets to victims of a more even process are more
important than ensuring criminal safeguards for a civil defendant in a stealthing
action, because ultimately the defendant’s personal liberty is not at stake in a civil
action. Nonetheless, it is important to consider the solutions that the existing civil
framework in Ireland could provide to stealthing.
IV.I. Current Framework
To the extent that there is merit to a civil approach, it is worth considering how the
current tortious framework might cater for the act of stealthing. Here, Ireland is
at a disadvantage, because unlike some other jurisdictions, there is no explicit tort
of sexual battery in Irish law. As such, it would be prudent to examine a number of
possible solutions to stealthing in the existing law of torts in Ireland.
Firstly, Irish courts have in the past awarded damages in civil actions for sexual
abuse,83 though these were not awarded for the breach of a specic tort of sexual
battery. e rst such case in Ireland was Nolan v Murphy, in which the plainti
successfully obtained an award of damages for sexual assault against a defendant
who had sexually abused her throughout her adolescence.84 e court in Nolan
acknowledged that this case was breaking new ground, but did not address
whether tort law was an appropriate avenue for this claim, most likely because the
appeal only dealt with the issue of quantum. Indeed, there appears to be very little
assessment in the case law of this question. It is also worth bearing in mind that
no issue was raised in Nolan with the fact that the defendant was also serving a
custodial sentence for the same conduct, having been found guilty in the Circuit
Court. As such, it is unclear what boundaries the Irish courts have drawn around
the bringing of actions for sexual assaults in tort law. However, it is worth bearing
in mind the context in which this and other cases arose:85 all of these cases related
to historical sexual abuse and not contemporary violations. In any event, there
is simply not enough detail in the case law on this point to make any denitive
statement as to whether tort law would be amenable to claims for stealthing in
the same way as it was for these historical abuses. It is certainly an avenue worth
trying, but a victim of stealthing may be better served by a cause of action that
more specically tackles this conduct, rather than relying on a line of case law of
uncertain relevance.
e ‘constitutional tort’ is another potential avenue for the bringing of a stealthing
claim in tort law. is originated in the case of Meskell v CIÉ, 86 where WalshJ
83 Connellan v St Josephs Kilkenny [2006] IEHC 119. See also McMahon and Binchy (n 74) [22.19]
fn 55.
84 Nolan v Murphy [2005] IESC 17.
85 Such as Connellan (n 83) and O’Keee v Hickey [2009] 1 ILRM 490.
86 Meskell v Córas Iompair Éireann [1973] IR 121.
Stealthing in Irish Law: Legal Solutions for a Unique Se xual Violation 113
held that constitutional rights are enforceable horizontally as well as vertically,
and that an award of damages may be an appropriate vindication of these rights.
However, this cause of action was limited by the Supreme Court in Hanrahan v
Merck, Sharp & Dohme,87 where Henchy J stated that a tort action for the breach
of constitutional rights would only be possible where there is no common law or
statutory cause of action, or where a relevant tort exists but is basically ineective
to protect the constitutional right concerned.88 e constitutional right concerned
in a case of stealthing would presumably be the obligation imposed on the State
in Article 40.3.2 to inter alia protect and vindicate the ‘person’ of every citizen.
e right to bodily integrity established in Ryan v Attorney General may also be
a signicant constitutional right worth protecting in the context of stealthing.89
However, Charleton J has stated in Blehein v Minister for Health that the doctrine
of judicial restraint requires that any constitutional tort be dened precisely and
only resorted to where absolutely necessary.90 As such, it seems that a constitutional
tort approach would only be available where there is no other cause of action in
tort. It is not clear whether there is a tort which would cover the act of stealthing,
however, given the judicial restraint outlined in Blehein, it seems unlikely the courts
are willing to extend the use of the constitutional tort much further.
e existing civil framework provides some seeds from which a cause of action for
stealthing might conceivably grow. However, they are plagued with uncertainty
and subject to the whims of the courts, rendering them unhelpful for victims who
may not have the resources to undertake a civil action where it is not clear that a
cause of action even exists. It is this author’s view that as a result of these issues,
a new cause of action is needed to ensure a civil remedy for stealthing. However,
as noted by Hogan J in Blehein,91 the courts have no jurisdiction to create any
new common law torts and are generally conned to developing the law of torts
incrementally. As a result, it is necessary to dra a new statutory tort to ll this gap
and ensure certainty for victims of stealthing.
V. A New Framework
V.I. Civil or Criminal Framework?
Stealthing is a problematic case because it seems on its face like an obviously
criminal aair, especially in a jurisdiction with little tradition of sexual battery
torts. It has been placed on a criminal footing in Australia,92 and a conviction for
87 Hanrahan v Merck, Sharp & Dohme (Ireland) Ltd [1998] ILRM 629.
88 ibid 636.
89 [1965] IR 294.
90 [2018] IESC 40 at [15].
91 ibid [11].
92 Crimes Act 1900, s 67(1)(h). Other jurisdictions have also contemplated criminal sanctions
for stealthing: for example, the New York State Senate attempted to bring stealthing under the
114
stealthing occurred recently in the District Court of New Zealand.93 However, it
has also been implemented in at least one jurisdiction as a tort, namely in the State
of California.94 As a sexual violation, stealthing does have a public dimension, and
the regulation of this conduct is an important concern that this article and others
have tried to address. ere are nonetheless good practical reasons for making
stealthing a tort, foremost among these being the additional control it would
give to victims, who are oen disempowered in the prosecution of sexual oences
committed against them.95
e primary issue, however, is that the current criminal and tortious frameworks
do not provide certainty for victims of stealthing. In the criminal sphere, stealthing
falls in between the oences of rape and sexual assault. ere is no certainty that the
courts would classify stealthing as rape, given the ancillary fraud doctrine. However,
equating stealthing with rape may not be an adequate reection of the dierent
harms posed by each oence or the varying moral qualities of each oence. On the
other hand, classifying stealthing as a sexual assault does not seem to go far enough
in vindicating the victims of stealthing. Stealthing seems to lie in between these
two oences. In any event, neither of these oences provide comfort to victims
of stealthing because it is not immediately clear which oence such an act would
be prosecuted under. Similarly, the tortious framework provides little comfort for
victims because at its outset, it is not clear how stealthing can be enforced civilly.
It could be open to the courts to amend the current criminal or tortious frameworks
themselves, in order to provide redress for victims. However, the doctrine of the
separation of powers would strongly prevent same from happening. e fact is
that stealthing falls in a grey area between rape and sexual assault in terms of its
nature and consequences, and the courts should be wary of stepping outside their
jurisdiction in this regard. Similarly, it is not open to the courts to fashion new
torts from whole cloth, as seen in Blehein.
ere are practical advantages to both the criminal and civil approaches. e
criminal approach makes a stronger statement that Irish society does not condone
the behaviour involved and can provide security to victims in knowing that the
perpetrator has been imprisoned. Meanwhile, the tort approach oers a number
of procedural advantages that may be attractive to victims who do not wish to
suer the oen harrowing experience of a criminal trial. It is therefore necessary
to utilise the benets of both a criminal and a tort approach to meet the objectives
outlined in Part II. It appears that the best solution to the stealthing problem is for
denition of sexual misconduct in the state penal code in NY State Senate Bill S4401 (2019). e
author has chosen to focus on the Australian statute above any others because of its similarity to
the new Irish section 9(2), as discussed below.
93 R v Campos [2021] NZDC 7422.
94 California Civil Code, s 1708.5.
95 For more such advantages in a US context, see Ellen M Bublick, ‘Tort Suits Filed by Rape and
Sexual Assault Victims in Civil Courts: Lessons for Courts, Classrooms and Constituencies’
(2006) 59(1) SMU Law Review 55, 68-75.
Stealthing in Irish Law: Legal Solutions for a Unique Se xual Violation 115
the Oireachtas to put stealthing on a legislative footing as both a crime and a tort,
along the lines proposed in this Part V. Similar to the old position on common
law assault and battery, the commencement of criminal proceedings for stealthing
should not aect a plainti ’s civil law remedies.96 is solution would give adequate
recognition to the criminal character of stealthing and the violation perpetrators
visit upon their victims, while allowing those victims an alternative route if they
do not wish to pursue criminal proceedings. It is entirely possible that in practice
the controversy caused by the introduction of a new tort of sexual battery may be
too politically dicult to overcome, and the tort will fall by the wayside while
the criminal oence is written into law. is is not guaranteed, however, and
the potential political diculties of introducing a particular legal provision are
no reason not to propose its introduction, especially where the simultaneous
introduction of a criminal oence can ensure that a solution for stealthing is
written into law either way.
V.II. A New Criminal Provision
It has been demonstrated that there are issues with tting stealthing into the
boundaries of any of the existing sexual oences in Irish law. Creating a new
oence of stealthing would have the advantage of tailoring the text of this oence
to accommodate the risks and nature of stealthing, without relying on judicial
or prosecutorial discretion to t it into an existing oence that may not suit the
unique characteristics of stealthing. e author proposes the following potential
formulation:
I. It shall be an oence to, while having sexual intercourse with another
person, intentionally remove or neglect to wear a condom, where the use
of a condom is requested by the other person as a precondition for their
consent to sexual intercourse.
i. For the purposes of this section:
i. ‘consent’ has the same meaning as in section 9 of the Act of 1990;97
and
ii. ‘precondition for their consent to sexual intercourse’ means consent
would not have been given if the person consenting had known that
no condom would be used.
II. e Act of 1990 is amended by the insertion of the following section aer
section 9(2)(h):
i. ‘(i) he or she is intentionally misrepresented to by the other person
about the use of a condom’.
96 McMahon and Binchy (n 74) [22.19]; Criminal Justice Act 1951, s 11(4).
116
Section 1 of the above sets out a new oence. is formulation puts the onus on the
person who has been requested to wear a condom to do so. e phrase ‘requested
use’ makes the perpetrator’s use of a condom the operative one – if the perpetrator
was requested to use a condom and intentionally did not do so, it will not be a
defence that the victim was already using contraception. is is important because
though the victim’s use of contraception may signicantly reduce the chance of
pregnancy,98 the risk of contracting an STI will still be present if the perpetrator
does not wear a condom. e request required need not be explicit, as to require
such would inevitably exclude some genuine instances of stealthing from criminal
prosecution:99 the high burden of proof in criminal cases can be relied upon to
avoid unjust convictions resulting from implicit requests, as these should not
succeed without sucient evidence. e draing of this oence is also gender-
neutral. e risks of stealthing in terms of STI transmission are gender-neutral, and
it is now possible (by virtue of the Gender Recognition Act 2015) for a person
who is legally male to become pregnant and experience all the attendant risks as
elaborated above.
Section 1 also relies on the same denition of consent as updated by the 2017
Act. e reasoning behind this is to keep the concept of consent uniform across
oences, as well as relying on the new positive denition of consent in section 9(1).
In addition to relying on this denition, section 2 of the above formulation updates
the denition by listing a new instance in section 9(2) of when a person does not
consent, being where they are intentionally misrepresented to by the other party.
Updating this denition makes clear that a person does not consent in a case of
stealthing. It also provides additional certainty to victims by including this updated
denition of consent for other sexual oences, such as rape and sexual assault.
Whilst this article has demonstrated that rape and sexual assault do not adequately
outlaw stealthing, by updating this denition, these other oences can be used
secondarily to the new primary oence, in the event prosecution of the primary
oence is not possible or adeqaute. is proposed new wording for section 9(2) is
modelled on the approach of the Australian Capital Territory (‘ACT’). In 2021,
the ACT Legislative Assembly amended section 67(1) of the Crimes Act 1900 to
include stealthing.100 is section is similar to the new section 9(2).
e true advantage of putting stealthing on a statutory footing, specically by
draing a new oence, is that doing so means the unique characteristics of stealthing
can be reected. Sexual assault either focuses on the violation itself but disregards
its consequences in the case of section 2, or in the case of section 3 imposes a heavy
maximum sentence that may not reect the ‘rape-adjacent’ nature of stealthing.
98 In cases where the victim can become pregnant.
99 Brodsky (n 3) 197.
100 is section lists the situations where ‘the consent of a person to sexual intercourse with another
person, or to the committing of an act of indecency by or with another person, is negated’ and in
that respect is similar to the new section 9(2). is list now includes ‘intentional misrepresentation
by the other person about the use of a condom’, thus criminalising stealthing.
Stealthing in Irish Law: Legal Solutions for a Unique Se xual Violation 117
On the other hand, expanding fraud in rape leaves victims with very little certainty
as to which approach the courts will take (and thus whether their case will be
successful), and either way ends by placing the label of ‘rape’ on stealthing that may
not reect how its victims feel about their treatment. A new approach could reect
the ‘rape-adjacent’ nature of stealthing by setting out a higher maximum sentence
than that available for section 2 sexual assault, but lower than that available for
section 3 sexual assault or the most serious cases of rape. e crime occurs because
of the fact of sexual intercourse accompanied by non-consensual condom removal,
so the absence of a possibility of pregnancy or STI contraction in a particular case
does not take away from the fact that the victim has been violated – as such, this
is more eective than an expansion of rape that relies on the possibility of these
consequences. Furthermore, a higher sentence would reect the fact that stealthing
oen poses more danger to the victim than section 2 sexual assault, by virtue of the
consequences already discussed. is proposed oence combines the characteristics
of the oences of rape and sexual assault to ensure that instances of stealthing
cannot slip through the cracks, while reecting appropriately its nature as a ‘rape-
adjacent’ violation and aligning with the new framework for consent created by the
2017 Act.
V.III. A New Tor t
As discussed previously, there are some options in the existing civil framework
which could facilitate a civil action for stealthing. However, it is by no means
certain that these options will work for stealthing, given that no such civil action
has ever been brought. Furthermore, it is easier to ensure that the new criminal
and civil provisions work in tandem as intended if they are both new provisions,
rather than attempting to support a new criminal provision with an uncertain
interpretation of assault or battery or the so-called ‘constitutional tort’.
A recent change to section 1708.5 of the California Civil Code, which created the
tort of sexual battery, will be instructive in devising a new statutory tort. Assembly
Bill 453 inserted subsections 4 and 5 to deal with stealthing, and the section now
reads as follows:
1708.5 (a) A person commits a sexual battery who does any of the following:
[…]
(4) Causes contact between a sexual organ, from which a condom has been
removed, and the intimate part of another who did not verbally consent to
the condom being removed.
(5) Causes contact between an intimate part of the person and a sexual
organ of another from which the person removed a condom without verbal
consent.101
101 California Civil Code, s 1708.5.
118
is formulation is gender-neutral and operates on the presumption that use of a
condom is the default position. A formulation which does not require the victim or
plainti to explicitly request the use of a condom, but rather assumes that a condom
will be used unless verbal consent is given to its removal, is likely to capture a larger
number of incidents than a formulation which requires an explicit request. ere
can be valid concerns about this in a criminal context, however when formulating
a civil oence that does not risk the defendant’s personal liberty, these concerns
may not be as urgent, and the broader formulation may be more acceptable. e
formulation in section 1708.5 of the California Civil Code is coherent, reasonable,
and appears to achieve the goal of punishing stealthing under the civil law. is
author submits that this formulation should be used as the model for a statutory
tort of sexual battery in Ireland.
However, the Californian provision benets from the fact that Californian law
already recognised a tort of sexual battery, and so the inclusion of stealthing was
simply an addition to an existing tort. California also has a civil code, which is not
a feature of Irish law. In Ireland, such an oence would be the rst instance of a
tort of sexual battery in this jurisdiction. It goes without saying that this could
be controversial, especially given the sensitive nature of the behaviour concerned.
Nevertheless, this author submits that simply because such a tort does not exist
in Ireland at present does not mean it should not be introduced through statute.
is is especially the case given the reluctance of the courts to fashion new torts,
in which case it falls on the legislature to dra civil remedies in cases where the
current tortious framework fail to adequately vindicate the rights of victims.
VI. Conclusion
e analysis in this article has demonstrated that there are a number of ways to
outlaw non-consensual condom removal: expanding the concepts of rape and fraud
as to consent, deeming stealthing a form of sexual assault, or pursuing civil remedies
through an action for sexual abuse or a constitutional tort. ere are potential
problems with each of these approaches.
In the criminal context, though the previously watertight position on fraud is
now more porous, there is no guarantee that the Irish courts will follow Assange
or Hutchinson over Dica when a stealthing case comes before them. It is also not
clear whether they will interpret the section 9(1) denition of consent in an
expansive manner. More importantly though, the consequence-based justications
for expanding the concept of rape are simply not applicable in some situations,
even though the victims in those situations are still very much being violated.
Sexual assault overcomes the latter diculty by focusing on the violating act itself,
but a legal disregard for the consequences of the act (in the case of section 2) is a
double-edged sword. It allows a wider range of situations to be captured, but fails
Stealthing in Irish Law: Legal Solutions for a Unique Se xual Violation 119
to show why stealthing is oen worse than other kinds of sexual assault, namely
the potential for the victim to become pregnant or contract an STI depending on
the circumstances. In addition to these concerns, and arguably most importantly,
interpreting existing criminal oences in too broad a manner could breach
the doctrine of separation of powers. In the civil context, the current tortious
framework is even more uncertain and inadequate at providing clear remedies for
victims of stealthing. is is because no clear cause of action exists for victims and
the courts have expressed reluctance at fashioning new torts.
A new criminal oence which relies on the updated concept of consent in the
2017 Act, and amends same, could resolve this tension by focusing on the act
of stealthing while also paying attention to the consequences by having a higher
maximum sentence than sexual assault. A new tort modelled on the Californian
tort of sexual battery would give much more control to the victim in the
proceedings, but could be too controversial if introduced on its own. As such, the
author believes that the combination of these two approaches – by draing new
civil and criminal provisions that would work side by side to achieve the objectives
outlined in Part II – would be the best approach the Oireachtas could take to the
problem of stealthing. is approach unites practical considerations and political
legitimacy in order to provide a comprehensive solution to a serious violation of
sexual autonomy. is is not to say that there may not be issues: these provisions
will have to be draed carefully, with close consideration given to the conduct
they encompass and the penalties or civil remedies they create. It is, however, this
author’s hope that this approach will provide an eective deterrent to stealthing
and an eective remedy for the victim and the community.
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