By: Ellen Hagström, Guokai Sun, Robin Bucher, Naomi Ott and Karolina Kiripolska
Despite a strong legal grey zone regarding the legal status of stealthing, also known as non-consensual condom removal, the information that is provided by the Youth Health Centers suggests otherwise.
MIJ conducted an undercover investigation, posing as a stealthing victim, to explore the recommendations provided to individuals who have experienced stealthing at their nearest UMO (Ungdomsmottagning) in Sweden. The team contacted one UMO from each region of Sweden using the same undercover scenario to document the process that stealthing victims typically undergo.
Upon calling UMOs the team was usually met with clear suggestions of first taking precautions against unwanted pregnancies, followed by recommendations on STD tests. When asked about it, the discussion about the legal status of stealthing was very clear from the side of the centers; it is illegal.
This legal perspective was, however, not shared by the Associate Professor in Criminal Law at the Faculty of Law at Lund University, Linnea Wegerstad:
“If sex is consented from the beginning, sex with condom, and sex without condom, is considered as one act. Misleading in terms of contraceptives is not considered sexual assault nor rape.”
Wegerstad further explains that stealthing does however remain in a legal grey zone as it theoretically could fall under the law for sexual harassment, but such a case has yet to reach a court.
This statement is also supported by Stina Holmgren, a researcher at The Swedish National Council for Crime Prevention (BRÅ), who tells “The preparatory works are clear I think, and I do not think that it could be negligent rape. The prosecutors interpret it as not rape, as I have read all the court cases about rape from 2023 so far and have not found any case that concerned the use of condoms.”
The phenomenon became widely known through Anna Ardin, who claimed she was subjected to stealthing by Julian Assange in 2010. Ardin did file a report for forced insemination, but the prosecution couldn’t move forward due to a lack of sufficient evidence. Anna Ardin later commented on MIJ findings, “I’m considering the potential theoretical scenario where reporting incidents becomes a necessary step in establishing a legal precedent. In the case against Julian, the prosecutors labeled it as sexual molestation, but I believe they should have also looked into it as attempted aggravated assault which I’ve referred to as forced insemination in my book. So, asserting that it’s illegal isn’t necessarily incorrect or unexpected; we simply haven’t established a legal precedent for it yet.”
For something to fall under the Consent Law, the legal requisite needed is “unwilling participation” rather than “consent”. If both parties are having sex willingly, criminal action cannot be taken. According to the preparatory work to the Consent Law, if you notice that a condom has been removed during intercourse, and you as a result decide to end it, the previously given consent is void of its relevance. However, if this is done only after the intercourse is over, it claims the following: “In such a situation, it would be too far-reaching a consequence for criminal liability of sexual assault to be triggered.”
The absence of clear official categorization as a crime often leads to confusion for women who may struggle to recognize themselves as victims. Consequently, they may unfairly attribute blame to themselves, believing they failed to take appropriate action.
“Since the legal status isn’t clear, I feel like I’m just making things up,”
Maria, a 19-year-old student from Malmö, a victim of stealthing
Almost two-thirds of sexual assault victims report mental or emotional problems as a result.
In the past few years, several Western nations, including Germany, the United Kingdom, Australia, Canada, Singapore, and New Zealand, have passed laws to criminalize stealthing. In 2021, the U.S. state of California also took this step.
As the trend toward the criminalization of stealthing gradually gains momentum, the situation in Sweden, with its unclear laws on the matter, is likely to face scrutiny and examination, especially since the Netherlands recently convicted a man of stealthing.