“Stealthing”: When Criminal Law Stops Short at the Threshold of Intimacy…
In this digital age, marked by the tremendous growth of social media, legal certainty—which until now had been the focus of everyone’s attention—is now confronted with the boundless and rapidly expanding ingenuity of malicious users of these new technologies, who, with just three clicks, outpace the responsiveness of our legislative system and, without any protection, draw in impulsive young people—the ideal prey for the many predators that swarm the Web.
Cécile Lefrançois and Clémence Vialatte, University of Montpellier
Faced with this frantic race for attention—and in the absence of legislation—criminal judges often find themselves limited to defending the time-honored pillars of our legal system, such as the sacrosanct principle of consent, the absence of which is so difficult for victims to prove.
Furthermore, French criminal law is strictly governed by broad general principles, among which is the principle of legality in criminal matters. This principle requires that any act considered a criminal offense be precisely defined in advance by law in the strict sense to be subject to criminal penalties.
Pornographic Revenge: Punished Too Late
It was not until the Law on a Digital Republic of October 7, 2016, that “revenge porn” was finally made a punishable offense. This involves a rejected lover disseminating, without the explicit consent of the person concerned, an intimate image of a sexual nature of their former partner—taken or obtained with consent during the relationship—for the sole purpose of humiliating or even defaming them.
However, the legislature can be criticized for failing to clearly define the highly subjective concept of “sexual nature, ” which will certainly compel the Constitutional Council to rule on the matter in the context of a priority constitutionality review.
Until now, judges have refused to penalize such conduct, taking the debatable view that consent given at the time the photograph was taken implicitly—or even automatically—extended to the right to distribute it, even when the abuse of consent appeared obvious.
The Limits of French Law Regarding the Practice of “Stealthing”
What, then, will his position be when the first case of “stealthing”— the practice of removing a condom without one’s partner’s consent during consensual sex —comes before him? Since consent to the sexual act is contingent on the use of protection, its deliberate removal constitutes a clear abuse that should be punished. And yet, criminal law once again comes up against its own limitations.
While the Lausanne Criminal Court classified “stealthing” as rape and, on that basis, sentenced a 47-year-old Frenchman to a 12-month suspended prison term under French law, this classification would be rejected in the name of the principle of strict interpretation of criminal law. Indeed, rape—defined as the sexual penetration of another person through violence, threats, coercion, or surprise—necessarily implies a lack of consent to the sexual act itself—which is not the case here.
The judges could certainly consider “stealthing” as an “act or behavior likely to cause the victim physical or psychological harm characterized by emotional shock or psychological distress” (Criminal Chamber, September 2, 2005, No. 04-87046) and punish the perpetrator for intentional violence.
But is it truly the deception resulting from the non-consensual removal of a condom during a relationship of trust that judges would consider to be the cause of the emotional shock, or is it the fear inherent in the risks involved in unprotected sex, such as an unwanted pregnancy or the transmission of sexually transmitted infections?
Whatever the cause, it will be up to the judges to decide, on a case-by-case and even subjective basis, on the reality of this emotional distress, by virtue of their sovereign discretion.
The Hurdle of Proof
Should we, then, once again hope that the legislature will step in to create a new, specific offense that would provide an extremely precise legal definition of this singular form of risky behavior—one that can manifest itself in only one way, through a single type of conduct within a given context?
However, as the European Court of Human Rights has repeatedly emphasized, excessive precision does not seem desirable, as this would amount to enacting a standard that would apply only to a specific social phenomenon—which would perpetuate the endless “legislative overreach,” the ineffectiveness of which has been demonstrated time and again.
While one or the other of these solutions may seem theoretically viable, the practical reality raises a major issue that is often overlooked: that of proof. Indeed, it appears very difficult for a person to prove not only that they consented to the sexual act on the strict condition that it be protected, but also that their partner removed said protection without their knowledge.
Awareness, Information, and Education
This evidentiary challenge, common to all matters pertaining to private life, intrinsically reveals the limitations of criminal law, which struggles to address abuse – the absence of or exceeding the limits of consent in sexual relations (such as in sadomasochism or consensual sexual relations with minors) and to strike the right balance between individual freedom and the need to crack down on certain behaviors that could be classified as deviant.
In the face of the repulsive machismo of some people revealing themselves through various forums or social media platforms And in a somewhat conservative society, this quickly leads either to the victim being discredited for her naivety or even her recklessness, or to doubts being cast on the sincerity of her account. Awareness-raising, information, and education are the only effective tools for eradicating this scourge.
To understand this, we had to wait until people felt free to speak out—with a certain vehemence, no doubt commensurate with all those years of suffering without being believed…
Cécile Lefrançois and Clémence Vialatte, Ph.D. students, teaching assistants at the law school, University of Montpellier
The original version This article was published on The Conversation.