RECENTLY, several news portals carried a story of a Malaysian woman filing a police report against a foreign man for removing his condom while they were having sex. The callous response of netizens to the story shows an egregious lack of sexual education on their part.
The act of removing a condom during sex without the consent of the partner is known as “stealthing”. It is illegal in many countries and is seen as a form of sexual assault.
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.
More importantly, consent can be conditional. This means that when the conditions imposed have been destroyed, consent is vitiated and negated.
Undoubtedly, requiring one’s partner to wear a condom is a reasonable condition, considering how this 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 the law. Under Section 375(b) of the Penal Code, sexual intercourse without consent constitutes rape. Under Section 375(c), 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 a condom but in fact sabotages the condom or not wear 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 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. 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.
While stealthing has not been legally tested in a court of law in Malaysia, reference can be made to the United Kingdom law, this being the persuasive authority of law to Malaysia.
In Julian Assange v Swedish Prosecution Authority, 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 has gone as far as holding that deliberate ejaculation within the vagina constitutes rape: “she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based.”
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 towards 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 the 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.
TAN ZU HAO
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