A German policeman has been found guilty of sexual assault for removing a condom during sexual intercourse without the consent of his partner, an act known as “stealthing,” in what is believed to be the first case of its kind to be prosecuted in Germany.
The defendant, 36, was found guilty at a local court in Berlin on December 11, after carrying out the offense at his apartment in the German capital on November 18, 2017, said Berlin’s chief court spokeswoman, Lisa Jani.
He received an eight-month suspended jail sentence from the court and was fined €3,000 ($3,400) in damages, along with a €96 fine to pay for a sexual health test for the female victim.
The victim told the court that she “explicitly requested” the man to wear a condom, and gave no consent to sexual intercourse without protection. She added that she only realized the man had not been wearing a condom when he ejaculated, according to Jani.
The woman subsequently left his flat enraged — worried that she might have caught a sexually transmitted disease — and called the police to the defendant’s property, but he did not open the door.
“Stealthing” is the subject of continuing legal and linguistic global debate. Its prosecution has only been made possible in Germany since the country’s sexual crime laws were reformed in 2016, placing greater weight on consent when considering sexual assault claims.
Legal expert Alexandra Brodsky wrote on the topic in the Columbia Journal of Gender and Law, advocating for a new civil law that would specifically name the practice as “nonconsensual condom removal,” in order to help victims gain justice.
Brodsky also noted that while no “stealthing” cases have been reviewed in the US, criminal trials have taken place in other countries, including Switzerland and Canada.
In 2017 a man was convicted of rape in the criminal court of Lausanne, Switzerland, after taking off a condom during sexual intercourse without the knowledge of his partner.
A 2014 Supreme Court of Canada ruling also upheld a sexual assault conviction of a man who pierced holes in a condom without his sexual partner’s knowledge.
He had previously been convicted of aggravated sexual assault and sentenced to 18 months in prison.
Jani confirmed to CNN that the police officer in the German case was tried for rape, but noted that the court only found him guilty of sexual assault.
She added that while the court found his act of “stealthing” to be non-consensual, the sexual intercourse itself was deemed to be consensual.
If the man had been found guilty of rape, he would have faced a sentence of at least two years in prison — the statutory minimum sentence in Germany.
Jani, however, noted that the prosecution of “stealthing” remains a gray area, as the defendant is, to her knowledge, the first person to be convicted of the offense in Germany.
“There is no precedent on which the judges could rely,” she told CNN.
The man defended himself in court by stating that the condom had already ripped, prompting him to remove it completely. He also claimed that he ejaculated outside the woman’s body; an assertion the victim denies.
The defendant has since stated that he will appeal the verdict to one of two higher courts in Berlin — and the final outcome is still undetermined.
Prior to the reform of Germany’s sexual crime laws in 2016, the country’s legislation was considered antiquated as it required victims to show that they physically resisted attacks before charges of rape and sexual assault could be brought forward.
Following a backlash in the wake of sexual assaults carried out in Cologne on New Year’s Eve 2015-6, the government overhauled the legislation and based it on the tenet of “no means no.”
“We need strong sexual crime legislation. What we currently have is far too weak,” Germany’s former minister for women, Manuela Schwesig, told German news site SVZ prior to the 2016 reforms.
“Rapes against women are often not punished as a crime. The blame is often pinned on women and the perpetrators go unpunished.”
The new legislation now takes into account any “verbal or physical cues” of objection to sexual contact, meaning that any victim who voices their refusal prior to a sexual assault can file a criminal complaint.
The regulations also make groping a sexual offense, facilitate the deportation of migrants convicted of sexual assault, and enable the prosecution of entire groups of individuals.