Stealthing in Spain: Condom Removal as Sexual Assault

Stealthing — removing a condom during intercourse, or not using one where its use was agreed, without the other person's knowledge — has moved from academic debate to a question of legal classification with very serious consequences. As criminal lawyers in stealthing cases, we set out the current framework from both procedural positions: the defence of the accused and the assistance of the complainant.

What Stealthing Means in Criminal Law Terms

The term describes conduct with two elements. The first is a prior agreement, express or inferable from the parties' acts, that a condom would be used as a condition of intercourse. The second is the unilateral and surreptitious alteration of that condition: the condom is removed, or simply not used, without the other person knowing or accepting it.

This is not a stand-alone offence. The Spanish Criminal Code contains no article devoted to stealthing, and the 2022 reform did not introduce one under that name. What exists is a doctrinal construction — conditional consent — that brings the conduct within the offence of sexual assault under Arts. 178 and 179 CP. This should be stated precisely: it is a well-established academic position applied by the courts, not an express statutory provision, and that difference has consequences for both prosecution and defence.

Consent Under Art. 178.1 CP and Conditional Consent

Organic Law 10/2022 abolished sexual abuse as a separate category. Since then the distinction between abuse and assault no longer exists: all non-consensual sexual conduct is sexual assault. Art. 178.1 CP punishes with a prison sentence of one to four years, as liable for sexual assault, anyone who performs any act against another person's sexual freedom without their consent, and adds the decisive test: consent shall be understood to exist only where it has been freely expressed through acts which, in view of the circumstances of the case, clearly convey that person's will.

The reasoning rests on that wording. If consent must be clearly expressed and must relate to that specific act, its scope is not unlimited: what was consented to was intercourse with a condom, and non-consensual removal places the act actually performed outside what was agreed. Consent does not disappear through later regret; it never covered the conduct in fact carried out. This follows the shift of focus introduced by the reform, examined in detail in our article on what has changed in sexual offences.

Sentencing Frameworks (Arts. 178 and 179 CP)

The framework depends on whether there was carnal access. Art. 178.1 CP provides for one to four years in prison for sexual assault without penetration. Where the assault consists of carnal access by vaginal, anal or oral means, or the insertion of body parts or objects by either of the first two, Art. 179.1 CP punishes the offender as guilty of rape with four to twelve years in prison. In the typical stealthing scenario penetration is consented to at the outset, so the discussion usually falls under Art. 179.1 CP.

The subsections aggravated by the means used are not normally engaged. Art. 178.3 CP raises the sentence to one to five years where the assault is committed using violence or intimidation, or against a victim whose will has been nullified by any cause, and Art. 179.2 CP imposes six to twelve years in prison in those same situations with carnal access. Stealthing is characterised precisely by the absence of violence and intimidation: it operates through concealment, not force. Arguing otherwise requires specific evidence.

The Mitigated Form for Lesser Gravity (Art. 178.4 CP)

Art. 178.4 CP allows the sentencing court, giving reasons in the judgment, to impose the custodial sentence in its lower half or a fine of eighteen to twenty-four months, in view of the lesser gravity of the act and the offender's personal circumstances. The provision makes this conditional on three negative requirements: no violence or intimidation, a victim whose will was not nullified by any cause, and the absence of any circumstance listed in Art. 180 CP.

This mitigated form must not be confused with abuse of a position of superiority. Art. 178.4 CP is a mitigated form based on the lesser gravity of the act; taking advantage of a relationship of superiority or cohabitation with an adult victim is instead the aggravating circumstance in Art. 180.1.5 CP. Raising Art. 178.4 CP is a legitimate technical avenue where the act, without denying its wrongfulness, is of lesser gravity and none of the excluding circumstances applies.

Aggravating Circumstances Under Art. 180 CP

Art. 180.1 CP raises the sentences to two to eight years for conduct under Art. 178.1 CP, five to ten years for conduct under Art. 178.3 CP, seven to fifteen years for rape under Art. 179.1 CP and twelve to fifteen years for rape under Art. 179.2 CP. Of its list, the circumstances with real application here are the third (a victim in a situation of particular vulnerability by reason of age, illness, disability or any other circumstance), the fourth (a victim who is or has been the offender's spouse or a woman bound by a comparable emotional relationship, even without cohabitation) and the fifth (taking advantage of a situation or relationship of cohabitation, kinship or superiority). Where two or more apply, Art. 180.2 CP requires the sentences to be imposed in their upper half.

Where the person affected is under sixteen, the classification moves to Art. 181 CP, with two to six years in prison and eight to twelve years where there is carnal access. Limitation is governed by Art. 131 CP according to the maximum penalty — five years for Art. 178.1 CP and fifteen for Art. 179.1 CP — subject to the special rule in Art. 132.1 CP for victims under eighteen, for whom time does not begin to run until they reach the age of thirty-five.

Evidence: Agreement, Removal and Intent

Evidential difficulty is the defining feature of these cases. The events occur in private and without witnesses, and the prosecution must establish three successive points: that condom use formed part of the agreement, that it was dispensed with during intercourse, and that this was deliberate and unknown to the other person.

The complainant's testimony may constitute sufficient evidence for the prosecution, but case law requires it to be assessed against the classic criteria of absence of subjective incredibility, plausibility and consistency in the accusation, reinforced by peripheral corroboration. Here corroboration is typically digital: earlier messages may establish the agreement on protection and later ones an acknowledgement or a coherent immediate reaction. To this are added the forensic medical report, hearsay testimony from whoever received the immediate account, documentation of post-exposure prophylaxis or emergency contraception and, where appropriate, psychological expert evidence. Electronic evidence is only effective if it enters the proceedings with guarantees of authenticity and integrity; a recording obtained without the knowledge of those involved raises admissibility problems that should be anticipated.

Technical Lines of Defence

The defence does not consist of questioning the complainant's dignity, but of holding the prosecution to the evidential standard required by the presumption of innocence. The first line is the true scope of what was consented to: if it is not established that condom use was a condition of the agreement — rather than an unspoken preference or a matter of no relevance to the parties — the premise on which liability is built falls away.

The second line is absence of intent. The offence has no negligent form: breakage, slippage or method failure, where genuinely accidental and not concealed, fall outside Art. 178 CP. The third is mistake under Art. 14 CP: an unavoidable mistake as to a fact constituting the offence excludes criminal liability and, where avoidable, the offence would be punished as negligent where applicable — which here means no liability at all, since no negligent form exists. Alongside this, the defence examines the internal coherence of the account, how it developed across statements, the chain of custody of the digital evidence and the possible application of Art. 178.4 CP. It must be explained from the outset that a conviction carries the supervised release measure under Art. 192.1 CP — one to five years for a less serious offence and five to ten for a serious one — and registration in the Central Register of Sex Offenders.

Assistance for the Complainant

From the opposing position, acting early shapes the outcome. It is important to preserve the digital evidence — complete conversations, with dates and context, without extracts that weaken their value — to seek a medical examination as soon as possible, to consider post-exposure prophylaxis and emergency contraception and document both, and to give a complete and stable account from the first statement onward.

Art. 191.1 CP requires a complaint by the aggrieved person or their legal representative, or a prosecution brought by the Public Prosecutor weighing the legitimate interests at stake; where the victim is a minor, a person with a disability in need of special protection or a helpless person, a complaint by the Public Prosecutor suffices. Once proceedings have begun, Art. 191.2 CP prevents the victim's pardon from extinguishing the criminal action. Appearing as a private prosecutor allows the complainant to propose investigative steps and to pursue the civil claim: Arts. 109 and 116 CP require compensation for the damage and loss caused by the offence, which covers non-pecuniary harm and the loss flowing from the risk of a sexually transmitted infection or an unwanted pregnancy.