JULY 25 — Few days ago several news site reported that a Malaysian woman filed a police complaint against a foreign man for removing his condom mid-sex. Netizens’ callous responses go to show an egregious lack of sexual education.
The alleged act is what has been coined as “stealthing”. This concept is not new in Western countries – it refers to a situation in which a man removes a condom during sex despite agreeing to wear one.
The concept of consent
First of all, some disquisition on the concept of consent is required, given the contemporary momentum to treat consent as the distinguishing factor between sex and rape.
Consent is a common understanding established between the participants to agree on something. When it comes to sexual intercourse, such consent must be explicit, unambiguous and out of free will. The person granting consent to an invite for sexual intercourse must not only have the capacity, but also the right to revoke it.
Importantly, consent can be conditional. And this means that when the conditions imposed have been destroyed, it is vitiated and negated.
Undoubtedly, requiring partner to wear condom is a reasonable condition, considering how such physical layer provides a perceived difference in terms of the degree of intimacy and reduces the risks of disease and pregnancy.
Stealthing can constitute rape in the eyes of law
Under section 375(b) of the Malaysia’s Penal Code, sexual intercourse without consent constitutes rape; And under section 375(c) of the Penal Code, sexual intercourse with consent can still qualify as rape, if such consent has been obtained by putting the victim in fear of death or hurt, or obtained under a misconception of fact and the man knows or has reason to believe that the consent was given in consequence of such misconception.
It is submitted that “stealthing” fulfils the criteria under either section.
When a guy lies about wearing condom but in fact sabotaging the condom or not wearing it, the fact that he would wear a condom has been rendered false, resulting in a misconception of fact by the woman who may have consented on this false basis. Quite obviously, when a guy lies in this situation, he must have known or have the reason to believe that the consent was obtained as a consequence of such misconception. These circumstances should accordingly fall under section 375(c) of the Penal Code.
Alternatively, argument can be made that there is simply no consent or that consent has been vitiated and negated when the condition on which consent is given has been removed. At the end of the day, one form of sexual contact does not provide a blanket consent to all sexual contact, and consent to touch by a condom covering a penis is literally distinct from consent to touch by the penis itself. This therefore fulfils section 375(b) of the Penal Code.
Hence, stealthing does arguably constitute rape under section 375(b) and/or (c) of the Penal Code.
Position of law in foreign jurisdictions
Last year in Switzerland, a man who was convicted of deliberately removing his condom without his partner’s knowledge during sex, has had his rape conviction changed to defilement, although the Swiss Court upheld the 12-month sentence.
Whilst “stealthing” has not been legally tested in the court of law in Malaysia, reference can be made to the UK law, being the persuasive authority of law to Malaysia.
In Julian Assange v Swedish Prosecution Authority  EWHC 2849 (Admin), an extradition case, the High Court held that if the complainant had made clear that she would only consent to sexual intercourse if the accused used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom.
To stretch it further, the High Court of UK in R (on the application of F) v The DPP  EWHC 945 (Admin) has gone as far as holding that deliberate ejaculation within the vagina constitutes rape:
If before penetration began the intervener had made up his mind that he would penetrate and ejaculate within the claimant's vagina, or even, because "penetration is a continuing act from entry to withdrawal" (see s.79(2) of the 2003 Act) he decided that he would not withdraw at all, just because he deemed the claimant subservient to his control, she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly her consent was negated. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuation of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape.
Needless to say, the Court did however emphasise that premature or accidental ejaculation within the vagina would not fall within the definition of rape.
The police must investigate
Despite the latitude on the argument relating as to whether stealthing should be classified as rape, what is certain is that it is a form of serious sexual offence and the perpetrators partaking in this activity must implacably be held to account.
It is simply unpalatable to see people having an unabashed and flippant attitude about stealthing, which is a result of the patriarchal mindset deeply embedded in our society. Not only is stealthing a demeaning violation of a sexual agreement, done for the thrill from misogynistic degradation and male dominance, it also gravely violates the body autonomy of the victim.
What is bewildering is that the police reportedly referred the case to Selangor Islamic Religious Department as opposed to investigating it, particularly when the law does potentially take umbrage. Although it may be hard to prove stealthing in the midst of consensual sex, this nonetheless is not a valid reason to not investigate. By not investigating, the police commits a grave dereliction of duty by failing to turn the wheels of justice for all victims out there of this horrendous crime.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.