Washington could become one of the few states to make stealthing, the act of secretly removing a condom or some other sexual barrier during sex, explicitly illegal.

House Bill 1958 would add a new chapter to the Revised Code of Washington describing civil penalties for this form of sexual assault.

Bill sponsor Rep. Liz Berry (D-Seattle) wrote the bill after a friend shared their story of being stealthed. 

When she tells others she’s working on the bill, “many” friends and acquaintances tell her they’ve been stealthed, too. “It was something that I had heard about before, but didn't realize it was really as prevalent,” she said. 

When people talk about stealthing, they’re usually referring to a person purposely removing a condom during sex without their partner’s permission. But not everyone has sex that way, which Berry’s bill addresses.

The bill instead broadly defines stealthing as removing or tampering with any protective device a person has agreed to use during sex. Those prophylactics include spermicides, cervical caps, dental dams, the sponge, and others. Lying about using a condom, or watching it slide off and doing nothing, would also count as stealthing if passed into law.

The term only came into common use a few years ago after Alexandra Brodsky’s 2017 paper in the Columbia Journal of Gender and Law, “‘Rape-Adjacent’: Imagining Legal Responses to Nonconsensual Condom Removal,” exploded in the culture. 

Right away, lawmakers started pushing for new policies. In 2021, California became the first state to amend its definition of sexual battery to include stealthing. Maine enacted its own law with civil penalties in June of 2023. States such as New York and New Jersey have aimed to criminalize the act.

Today in Washington and in most US states, victims don’t have practical legal remedies because prosecutors can charge people caught stealthing for rape. 

Riddhi Mukhopadhyay, executive director of the Sexual Violence Law Center in Seattle, said that prosecutorial power doesn’t always translate into criminal cases. 

She said survivors could face barriers like shoddy investigations, or prosecutors who won’t file charges even with solid evidence. Data shows most rapists don’t serve time for this vastly underreported crime. 

According to RAINN, the Rape, Abuse, and Incest National Network, 310 of every 1,000 sexual assaults are reported to police, and only seven of those crimes will result in a felony conviction. 

For its part, Washington has made progress on sexual violence issues–the state recently cleared its rape kit backlog and passed laws on police training and survivors rights. But even a few policy reforms, however effective, can’t overhaul a system overnight.

Mukhopadhyay said survivors are more likely to find justice in civil court, where people–not just the state–can drive the process. Though stealthing victims can already pursue protection orders or complicated personal injury cases in civil court, neither path works as effectively or flexibly as the one outlined in Berry’s bill. 

Victims can seek compensatory damages, punitive damages, statutory damages of $5,000 per offense, or injunctive relief. They can sue under a pseudonym and request that abusers attend counseling that the abuser must pay for.

Mukhopadhyay said the ultimate benefit of the civil process is granting agency to survivors who could decide if they want to seek out a remedy. 

Stealthing cases are also more likely to have little material evidence if a person did not become pregnant or contract a sexually transmitted infection. But the burden of proof in a civil case–offering the more persuasive evidence to a judge or jury–is lower than proving anything beyond a reasonable doubt in criminal court.  

Leah Griffin, a representative for survivors on the Sexual Assault Forensic Examination (SAFE) working group in the State Attorney General’s office and lobbyist for the Washington State Association for Justice, said juries won’t find that burden fulfilled very often in these cases.

“That is a much easier burden for survivors to be able to prove if you have, you know, text messages from someone apologizing for assaulting them,” she said. “That is evidence that is more likely than not, but not necessarily beyond reasonable doubt.”

Besides, Berry is not primarily interested in filling jail cells, and she approaches criminalization with caution, she said.

She prefers “giving folks a path for a civil cause of action, to not only be compelled to make their experience public for their own healing and for others to be aware of the issue, but also for them to seek damages, if necessary, for what has happened,” she said. “I don't necessarily think that putting someone in jail can be as effective at making somebody whole who has been harmed by an individual in this way.”