In a decision published on February 1, 2023, the German Federal Court of Justice (Bundesgerichtshof, BGH) held that the act of “stealthing” is punishable as sexual assault in accordance with section 177, paragraph 1 of the German Criminal Code (Strafgesetzbuch, StGB). The court defines “stealthing” as “having sexual intercourse without a condom contrary to the will and without the knowledge of the sexual partner.”
Facts of the Case
After consensual oral intercourse with a female partner, the defendant visibly took out a condom from a drawer and opened the packaging. His partner briefly turned around and did not notice that he left it on the bed instead of putting it on. She assumed that he would use the condom and had agreed to protected sexual intercourse only. Nonetheless, the defendant proceeded to have unprotected vaginal intercourse with her without her knowledge. She only later discovered that he had not been wearing the condom and left the apartment. (BGH para. 11.)
The defendant was convicted of sexual assault, aggravated sexual assault, and rape by the court of appeals and sentenced to a term of three years’ imprisonment. He appealed the decision further to the Federal Court of Justice on questions of law. (Decision para. 1.)
Decision
The Federal Court of Justice upheld the conviction for sexual assault in accordance with section 177, paragraph 1 of the German Criminal Code, but annulled the other part of the judgment due to a procedural error, because the defendant had been sentenced on the basis of a different charge than the one referred to in the original charges without letting him know. (Code of Criminal Procedure § 265, para. 1.) It remanded the case to a different chamber of the court of appeals for a new decision with regard to the annulled part of the judgment. (Decision paras. 2–9.)
Article 177, paragraph 1 of the German Criminal Code provides that “[w]hoever, against a person’s discernible will, performs sexual acts on that person or has that person perform sexual acts on them, or causes that person to perform or acquiesce to sexual acts being performed on or by a third person incurs a penalty of imprisonment for a term of between six months and five years.” The court stated that, as the woman had agreed to protected sexual intercourse only, having sexual intercourse without a condom was contrary to her will. It explained that having protected and unprotected sexual intercourse are two different sexual acts. Consenting to one therefore does not include consenting to the other. Using a condom prevents unwanted pregnancies and sexually transmitted diseases, which indicates that there is a qualitative difference between the sexual act that the person consented to and the one that actually took place, in the opinion of the court. The woman agreed to the sexual act in question only because she was not aware of the deception, which does not constitute consent to having unprotected intercourse, the court concluded. (Paras. 12–15.)
Related Developments
On May 11, 2022, the Swiss Federal Supreme Court (Bundesgericht, BG) held that the act of stealthing does not fall under the offense of “sexual acts with persons incapable of judgement or resistance” in accordance with article 191 of the Swiss Criminal Code.
Other jurisdictions have explicitly outlawed stealthing. On June 6, 2022, Tasmania became the second Australian jurisdiction to make stealthing illegal, after the Australian Capital Territory amended its consent provisions with respect to certain sexual offenses in October 2021.
Jenny Gesley, Law Library of Congress
March 3, 2023
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