'This is assault,' says U.S. lawmaker working to criminalize 'stealthing'

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Melissa Sargent wants to make Wisconsin the first U.S. state to criminalize "stealthing" — the act of secretly removing a condom during sex without consent.

"When I first learned about stealthing, I was wildly uncomfortable and I thought, 'Hmm, what can I do as a state legislator about this?" the Democratic state representative told As It Happens guest host Helen Mann.

"Quite frankly, I believe very much that it's time to get serious about what consent is."

• 'Stealthing' could be considered assault, experts say 

Stealthing is not explicitly covered under Canadian law but could constitute crime based on a 2014 Supreme Court of Canada ruling, CBC News reports.

As a civilized society we need to stand on the side of what is right and make sure that we're protecting people in our communities.- Melissa Sargent

That decision, R v. Hutchinson, upheld the sexual assault conviction of a man who poked holes in a condom without his partner's knowledge. He had been convicted of aggravated sexual assault and sentenced to 18 months in prison. 

While that case set a precedent for situations in which a partner is put at risk of unwanted pregnancy by sabotaged birth control, it doesn't necessarily include victims who can't bear children.

Sargent's bill, introduced in Wisconsin earlier this month, is wider in scope, and would require sexual partners to consent to removing any physical device intended to prevent pregnancy or sexually transmitted infection.

"We need to be talking about this across gender lines," she said. 

The bill, she said, would "redefine consent" based on the "understanding that we need to be gradual and consistent with checking on consent."

California also mulling stealthing law

Sargent's is one of two state bills that takes aim at stealthing — a practice that made international headlines last month when Alexandra Brodsky wrote about it in the Columbia Journal of Gender and Law. 

Her article, which examined possible legal solutions to the phenomenon, drew on interviews with anonymous victims of stealthing and accounts of stealthing posted online.​

California state representative Cristina Garcia, a Democrat, introduced a bill Monday that would make intentionally removing or tampering with a condom a form of rape in the nation's most populous state. Unlike Sargent's proposal, it doesn't apply to other contraceptive devices.

Garcia's spokeswoman, Teala Schaff, said Garcia herself had been a victim of stealthing years ago. When Garcia saw recent media reports describing the practice, she realized she could take action to prevent it from happening to other people.

Sargent said she'd been familiar with the concept of stealthing for years, but didn't know there was a word for it until reading Brodsky's research.

"Unfortunately, this is an action that has been happening for quite some time," she said. 

"Since I've put out this piece of legislation I can't even count the number of people who have reached out to me and said, 'You know I was the victim of this and, quite frankly, it felt wrong at the time but I didn't know what words to put behind it. I didn't know what actions to take for myself.'"

​Democrats control the state legislature and governor's mansion in California, but Sargent's bill will need significant bipartisan support to pass Wisconsin's Republican-controlled legislature.

She told As It Happens she will fight tooth-and-nail to pass it.

"We need to be straight about it, this is assault and as a civilized society we need to stand on the side of what is right and make sure that we're protecting people in our communities," she said.

With files from Associated Press and CBC News