A quick internet search revealed that while stealthing is addressed in two states, California and Maine, Washington laws provide no legal remedies. Berry said that’s when she got to work.
House Bill 1958, prime-sponsored by Berry, would create a civil cause of action for the nonconsensual removal or tampering with sexually protective devices like condoms and dental dams, as well as for misleading someone about the use of such protection. The bill proposes monetary damages of $5,000 per violation, as well as the reimbursement of costs and “reasonable” attorney’s fees for the prevailing party.
A 2017 research article published in the Columbia Journal of Gender and Law sparked a national conversation on stealthing, describing the offense as “rape-adjacent.” The authors say stealthing transforms consensual sexual encounters into nonconsensual ones by violating the mutual understanding that a condom or other device would be used.
The consequences can be severe, including unwanted pregnancy, sexually transmitted infection (STI) exposure, and emotional trauma.
Mina Hashemi, a stealthing survivor who testified at a House Civil Rights and Judiciary Committee hearing on Jan. 10, told legislators how, despite the privilege of having access to reproductive healthcare, the experience was distressing.
“In the weeks that followed I experienced deep anxiety about unwanted pregnancy and sexually transmitted infections,” Mina said. “We must close the loophole on assault.”
Research suggests stealthing can be tied to misogynistic attitudes, including a commitment to “male sexual supremacy,” the violation of women for personal gratification and the notion that women are deserving of unwanted pregnancies. Researchers also uncovered that stealthers found community in online platforms dedicated to discussing best methods.
Although Berry said the issue isn’t widely discussed, stealthing is relatively common. A 2019 study found that roughly 12% of women have experienced stealthing, with nearly 1 in 10 men reporting engaging in stealthing, according to a study conducted in Seattle.
Berry said many of the survivors she has spoken to, including her friend, often feel gaslit by sexual partners and confused about whether what happened to them was sexual assault.
“I think it’s this kind of quiet issue that a lot of people don’t talk about,” Berry said, “and once you learn more about it, you’re like, ‘Wait, that happened to me, oh, I was stealthed, that was an intentional act.’”
Proponents say HB 1958 would validate the experiences of survivors by reaffirming that stealthing is sexual assault, and considered to be under Washington law.
The bill notably does not make stealthing a criminal offense, instead allowing survivors to obtain monetary damages. Berry said it was an easy choice to draft the bill this way after speaking to survivors and learning that this route felt more meaningful to them – especially considering the costs for stealthing survivors, such as therapy, Plan B emergency contraception and STI testing.
“That was more fulfilling for people than having the person get charged with a crime and maybe go to jail for a period of time,” Berry said.
Although Berry said the bill has immense support, some legislators have concerns. Some argue the bill should include contraceptives like intrauterine devices (IUDs) and hormonal birth control pills, arguing that men could be stealthed by partners who ceased use of these methods without their knowledge.
“If a woman goes into a relationship and tells the man that they have an IUD … what happens if they remove it three months later and they want to get pregnant and a man doesn’t want to?” Rep. Michelle Caldier, R-Gig Harbor, said during the Feb. 7 House floor debate. “I am all for protecting women, but we have to protect men too.”
Berry feels these devices don’t fall under the bill’s definition of a sexually protective device as they don’t offer the same kind of protection as condoms and dental dams, which guard against both pregnancy and STIs.
The prime sponsor also has concerns that including these methods of birth control in the bill’s language could inadvertently be used by sexual partners accused of stealthing to flip the switch on survivors.
“There was a real concern about revictimizing the victim … by saying ‘Well, yeah, I took the condom off, but you weren’t on birth control,’ and it’s like, that has nothing to do with … the agreement we had before we had sex, which was that you would be wearing a condom,” Berry said.
Some legislators have also questioned how intentionality in stealthing cases could be proven in court, expressing concern that the process could become a he said/she said situation.
“I think that when we pass laws, we need to be careful that they are enforceable and not ambiguous, and I think that what this may create … is a morass of he said/she said and things that we can’t prove in court,” Rep. Cyndy Jacobsen, R-Puyallup, said during the Feb. 7 House floor debate.
Elizabeth Hendrin, an attorney with the Sexual Violence Law Center, a Seattle nonprofit that provides free legal advice and representation, said that in addition to a survivor’s testimony, there are a variety of ways intentionality could be proven in stealthing cases, such as text messages, social media posts, or photos or videos.
Berry said survivor testimony is accepted as a valid form of evidence under Washington sexual assault laws, and this bill is simply following the same case law.
“In rape cases, the same argument happens, so does that mean we shouldn’t have laws banning rape in our state because it’s a he said/she said situation?” Berry said.
Despite disagreement from some legislators about the scope and enforceability of the bill, HB 1958 passed out of the House on Feb. 7 with bipartisan approval, and is now moving through the Senate.
“We need to pass this bill to send a very strong message that this activity is absolutely against the law in Washington state, and should you choose to partake in this activity, you will be held to account,” Berry said.
