Stealthing in Irish Law: Legal Solutions for a Unique Sexual Violation

• Author: Jack Heron
• Pages: pp 95 - 120
• Published date: 12 July 2022
• Date: 12 July 2022

95

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 eorts 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 oences, including

the jurisprudence on consent in rape oences, in doing so examining whether any

existing oences 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.

2Sophie 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.

3Maullin (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.

96  

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 eective

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.

5Brodsky (n 3) 186–188.

6Brodsky (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.

7Nora 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 aair, given that it relates to

issues of consent to sexual intercourse. As such, it logically follows to look rst at

existing Irish sexual oences to see whether stealthing can be classied as a form

of rape or sexual assault. Introducing stealthing as a novel variation of an existing

criminal oence could be preferable to creating a new oence: rape and sexual

assault are established oences, whereas draing a new oence for a ‘rape-adjacent’

violation could introduce interpretive diculties. e following section will

examine the viability of current criminal oences to condone the act of stealthing

and how well they adequately address the harms posed by stealthing.

III.I. Rape

e long-established oence of rape has existed in Irish criminal law for centuries,

rst as a common law oence, then in statute. is oence was rst placed on

statutory footing in the nineteenth century,8 but now exists in a more modern

format in the Criminal Law (Rape) Act 1981 (the ‘1981 Act’).9 e actus reus

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

dened 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

8Oences Against the Person Act 1861, s 48.

9Criminal Law (Rape) Act 1981, s 2.

10Attorney General v Dermody[1956] IR 307.

11e People (DPP) v CO’R [2016] 3 IR 222 [45].

98  

of the oence.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 dierent person goes beyond the boundaries of the victim’s

consent.

A dierent 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 aer agreeing to pay £25 for

her services. He ed the scene aer 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 inuenced by a judicial

unwillingness to condone the victim’s illegal trade, but it appears to have been

inuenced more by a desire to restrict the ability of fraud to determine questions

of consent: Morland J quotes approvingly a passage from the Fieenth Report of

the Criminal Law Revision Committee on Sexual Oences 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 Duy 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.

15ibid 261.

16 Peter Charleton and Paul Anthony McDermott, Criminal Law and Evidence (2nd edn,

Bloomsbury 2020) 567.

17Linekar (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 reecting 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

classication 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, sucient 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 classied 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 classied as rape, a

recent statutory development provides potential scope for widening the denition

of consent. e relevant statutory update in this area is the Criminal Law (Sexual

Oences) Act 2017 (the ‘2017 Act’), which introduces a number of new oences

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 denition 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 denition,24 but believes that the words ‘freely and

20Williams (n 12).

21Law 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.

22Linekar (n 14) 255, 258.

23Other changes were included in the Criminal Law (Sexual Oences) (Amendment) Act 2019, but

these relate to sentencing and are not relevant for the purposes of this article.

24Sexual Oence 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’.

100  

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 denition 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 dierent 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,

25James 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.

26Criminal Law (Sexual Oences) Act 2017, s 9(2)(b). e common law position is stated in R v

Malone[1998] 2 Cr App R 447.

27McGovern (n 25) 74.

28McGovern (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 denition 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 oences,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 dierent act, namely sexual intercourse

30e People (DPP) v FE[2019] IESC 85.

31ibid [42].

32Director of Public Prosecutions v Jose Lacerna Pe na[2022] IECA 15.

33ibid [41].

34ibid [59]. In any event this case was not concerned with expanding the denition of consent.

35As represented by Linekar (n 14) and Papadimotropoulos (n 18).

36[2004] QB 1257.

102  

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 inicting bodily injury under section 20

of the Oences 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 sucient 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 classied

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 dicult 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.

37See also R v B [2007] 1 WLR 1567; R v Konzani [2005] EWCA Crim 706.

38R v Dica (n 36) 1268.

39Assange v Sweden[2011] EWHC 2849 (Admin).

40Assange v Sweden[2012] UKSC 22.

41R 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 oences have a similar denition of consent to the new

Irish denition, 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 signicant 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 ‘signicant risk of serious bodily harm’ within the meaning

of Cuerrier, and therefore suces 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 dierent labels given to the relevant oences in Ireland and

Canada – given the presence in Irish law of an oence of sexual assault which is

distinct from rape – may cause diculties in applying this case in Ireland, but the

similarities suggest that Hutchinson is still relevant to the present discussion.

43For more information see Kwong-Leung Tang, ‘Rape Law Reform in Canada: e Success and

Limits of Legislation’ (1998) 42(3) International Journal of Oender erapy and Comparative

Criminology 258, 260. e new oences are to be found in sections 271, 272 and 273 of the

Criminal Code of Canada.

44Section 273.1, Criminal Code of Canada.

45R v Cuerrier[1998] 2 SCR 371, [135].

46[2014] SCC 19.

47ibid [2].

48ibid [70].

49For 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.

104  

Hutchinson opens the possibility of stealthing falling within the oence of rape

by introducing a requirement of signicant harm for fraud to vitiate consent. e

principal question then is what kinds of risk or consequence are suciently 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 dierent STI such

as herpes,50 or a more curable one such as chlamydia. is case law suggests that a

suciently 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 sucient to vitiate consent in Hutchinson,52 but it is worth discussing this

question in detail for the benet 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 signicant 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

50R v Golding[2014] EWCA Crim 889: the Court of Appeal upheld a conviction for inicting

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 diculties 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.

52Hutchinson (n 46) [70].

53McFarlane v Tayside Health Board [2000] 2 AC 59.

54See 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

eects.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

sucient 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 aer the violation occurs and possibly not for a

signicant period of time aerwards.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 oence or to incur signicant 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 sucient 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.

57Davis (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 oence

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 denition of consent introduced by the 2017 Act would

seem to provide a basis for bringing stealthing within the oence. 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 sucient

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

justication for a more expansive concept of fraud as to consent disappears with

them. Such situations are not dicult to imagine and they make it potentially

58DPP v FE (n 30) at [42].

59DPP v JLP (n 32) at [59].

60Hutchinson (n 46); R v Mabior (n 50).

Stealthing in Irish Law: Legal Solutions for a Unique Se xual Violation 107

dicult 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 denitive guarantee that stealthing may be considered

a form of rape in Ireland. Additionally, each of these alternatives present their own

diculties, such that it is worth reconsidering whether pigeon-holing stealthing

into the category of rape does in fact provide sucient protection for victims.

Even if the Irish courts were to follow an approach that poses fewer diculties,

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 oence of common law rape in section 2 of the 1981 Act now exists alongside

the new oences created by the 1990 Act. Section 4 of the 1990 Act expands the

scope of rape beyond sexual intercourse. e oence, 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 oence 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.

62Scheidegger (n 7) 783.

63Sherry 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

Oences (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 oence to reect the unique harms of

stealthing.

III.III. Sexual Assault

Sections 2 and 3 of the 1990 Act provide for the oences of sexual assault and

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 oence of common

law rape, which historically could only be committed by a man.66 Sexual assault

replaces the old oence 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

oences from availing of any shortcomings of common law rape or section 4 rape.

It seems for example unlikely that either of the rape oences 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 classied as a form of sexual assault under these oences. An assault is

by denition intentional touching without consent.70 It is not clear that the same

65Criminal 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 oence of common law rape to be committed by a person who is legally classied 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.

67Charleton and McDermott (n 16) 593.

68Criminal Law (Rape) (Amendment) Act 1990, s 3(1).

69Although 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.

70Charleton 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 classied 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 benet of section 2 as an oence 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 diculties with the Canadian approach

to rape where consequences like a risk of pregnancy or STI contraction cannot

be established. Section 3 presents more diculties 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 oen 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 dierence can theoretically be reected 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 eect

of better reecting 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 oence of rape.

However, just because stealthing may come within the scope of these oences

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.

71Brodsky (n 3) 185–187 and generally.

72Brodsky (n 3) 188.

73Charleton and McDermott (n 16) 631.

110  

III.IV. Can Existing Irish Sexual Oences Accommodate Stealthing?

It seems clear from the above analysis that there are problems with accommodating

stealthing within the current sexual oences. Section 2 sexual assault may not be

able to adequately reect 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 signicantly on the unknown

views of the courts. Furthermore, it would not be up to the courts to fashion a

new criminal oence as the creation of new criminal oences is rightly considered

a matter for the Oireachtas,74 and stealthing may be thought too dierent 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 dicult 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 oence.

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

74Charleton and McDermott (n 16) 6.

75Brian McMahon and William Binchy, e Law of Torts (4th edn, Bloomsbury 2013) [1.10].

76Per 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 denition

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.

77Brodsky (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 oences 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 oences is a harrowing experience that can fail to provide

signicant 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 dierent criminal justice process for sexual

oences, 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 sucient if the defendant is held civilly rather

than criminally responsible for that harm. It is also signicant 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 oences, an obligation to register as a sex

oender. 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 oences deal with incidents of a very dierent moral quality

and stealthing has, it is submitted, a very dierent 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

oence, 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 classied 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 signicantly.

is is an accepted part of how the criminal law deals with sexual oences 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

79Dublin 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.

80As implemented in Ireland through the Criminal Justice (Victims of Crime) Act 2017.

81Dublin 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.

82Working Group Examining Protections for Vulnerable Witnesses in the Investigation and

Prosecution of Sexual Oences, Review of Protections for Vulnerable Witnesses in the Investigation

and Prosecution of Sexual Oences (2020) 48–49.

112  

dicult to implement, despite the denite advantages it would bring for victims.

is author believes that the benets 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 specic 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 denitive

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 specically 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 WalshJ

83Connellan v St Josephs Kilkenny [2006] IEHC 119. See also McMahon and Binchy (n 74) [22.19]

fn 55.

84Nolan v Murphy[2005] IESC 17.

85Such as Connellan (n 83) and O’Keee v Hickey [2009] 1 ILRM 490.

86Meskell 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 ineective

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 signicant 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 dened 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 conned 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 aair, 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

87Hanrahan v Merck, Sharp & Dohme (Ireland) Ltd [1998] ILRM 629.

88ibid 636.

89[1965] IR 294.

90[2018] IESC 40 at [15].

91ibid [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 oen disempowered in the prosecution of sexual oences

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 oences 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 reection of the dierent

harms posed by each oence or the varying moral qualities of each oence. 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 oences. In any event, neither of these oences provide comfort to victims

of stealthing because it is not immediately clear which oence 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 oers a number

of procedural advantages that may be attractive to victims who do not wish to

suer the oen harrowing experience of a criminal trial. It is therefore necessary

to utilise the benets 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

denition 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.

93R v Campos [2021] NZDC 7422.

94California Civil Code, s 1708.5.

95For 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 aect 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 dicult to overcome, and the tort will fall by the wayside while

the criminal oence is written into law. is is not guaranteed, however, and

the potential political diculties of introducing a particular legal provision are

no reason not to propose its introduction, especially where the simultaneous

introduction of a criminal oence 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 oences in Irish law. Creating a new

oence of stealthing would have the advantage of tailoring the text of this oence

to accommodate the risks and nature of stealthing, without relying on judicial

or prosecutorial discretion to t it into an existing oence that may not suit the

unique characteristics of stealthing. e author proposes the following potential

formulation:

I. It shall be an oence 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 aer

section 9(2)(h):

i. ‘(i) he or she is intentionally misrepresented to by the other person

about the use of a condom’.

96McMahon and Binchy (n 74) [22.19]; Criminal Justice Act 1951, s 11(4).

97Criminal Law (Rape) (Amendment) Act, 1990.

116  

Section 1 of the above sets out a new oence. 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 signicantly 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 sucient evidence. e draing of this oence 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 denition of consent as updated by the 2017

Act. e reasoning behind this is to keep the concept of consent uniform across

oences, as well as relying on the new positive denition of consent in section 9(1).

In addition to relying on this denition, section 2 of the above formulation updates

the denition 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 denition makes clear that a person does not consent in a case of

stealthing. It also provides additional certainty to victims by including this updated

denition of consent for other sexual oences, such as rape and sexual assault.

Whilst this article has demonstrated that rape and sexual assault do not adequately

outlaw stealthing, by updating this denition, these other oences can be used

secondarily to the new primary oence, in the event prosecution of the primary

oence 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, specically by

draing a new oence, is that doing so means the unique characteristics of stealthing

can be reected. 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 reect the ‘rape-adjacent’ nature of stealthing.

98In cases where the victim can become pregnant.

99Brodsky (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 reect how its victims feel about their treatment. A new approach could reect

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 eective than an expansion of rape that relies on the possibility of these

consequences. Furthermore, a higher sentence would reect the fact that stealthing

oen poses more danger to the victim than section 2 sexual assault, by virtue of the

consequences already discussed. is proposed oence combines the characteristics

of the oences of rape and sexual assault to ensure that instances of stealthing

cannot slip through the cracks, while reecting 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

101California 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 oence 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 benets 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 oence 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) denition of consent in an

expansive manner. More importantly though, the consequence-based justications

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 diculty 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 oen 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 oences 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 oence 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 draing 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 draed 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 eective deterrent to stealthing

and an eective remedy for the victim and the community.

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