Stealthing: Criminal Lawyers

Stealthing —from "stealth"— consists of the non-consensual removal of a condom during sexual intercourse, or refusing to use one when the other person had expressly conditioned their consent to protection use. After the entry into force of Organic Law 10/2022 on integral guarantee of sexual freedom ("Only yes means yes") and its subsequent correction by LO 4/2023, this conduct is fully subsumed into the offence of sexual assault of Art. 178 CP. The protected legal interest is sexual freedom, understood as the capacity for self-determination over the exercise of sexuality in its different dimensions, including the faculty to condition consent on specific circumstances such as the use of contraceptive or STI-prevention methods. The Plenary of the Supreme Court (STS 603/2024, of 14 June) has confirmed it: consent relates to specific acts and, where the act performed departs essentially from what was accepted, there is an offence against sexual freedom.

The commissive modalities of stealthing are diverse and technically broader than the term suggests. The physical removal of the condom during intercourse is the classical modality, frequently performed without the victim's perception at the moment. Intentional perforation of the condom before its use to annul its protective function equally configures the type. The substitution of the condom with a defective, expired or lower-quality one without the victim's knowledge operates in the same sense. The refusal to use protection when expressly agreed upon and, once in intercourse, dispensing with it through deception or pressure, also integrates the modality. When the conduct is reiterated or presents systematic character, punitive consequences and evidential assessment are aggravated. Comparative case-law has also treated this conduct as a sexual offence in several countries (for example, the Supreme Court of Canada in R. v. Hutchinson, 2014, over condom sabotage).

The penalties applicable to stealthing are severe. The basic type (Art. 178.1 CP) carries 1 to 4 years of prison. Even where stealthing occurs during vaginal, anal or oral penetration, the Plenary of the Supreme Court (STS 603/2024) does not punish it as rape under Art. 179 CP, because the penetration was consented to: the penalty remains that of Art. 178.1. The specific aggravating factors of Art. 180 CP (special vulnerability of victim, prevailing of superiority or kinship relationship, special degradation) raise the penalty to imprisonment of 2 to 8 years (Art. 180.1, applied to Art. 178.1). If the conduct results in an infection requiring treatment, an offence of injury (Art. 147 CP) is also committed, which the Supreme Court found with indirect intent (dolo eventual); an unwanted pregnancy does not aggravate the sexual offence, although it is compensated. The accessory consequences are devastating: mandatory registration in the Central Sex Offenders Registry (cancelled under the criminal-record rules if the victim is an adult), disqualification for professions with minors, 5 to 10 years' supervised release (1 to 5 for less serious offences), prohibition of approach to the victim. Civil liability for moral damages, medical expenses (emergency contraception, HIV post-exposure prophylaxis, STI treatment, psychological therapy) and, where applicable, maintenance of unwanted child, can reach very high figures.

Specialized technical defence is built on four axes. First, the challenge of accredited conditionality of consent: the criminal type requires consent to have been expressly conditioned on condom use; when no verbal or written prior agreement on protection is recorded, when the partner had previously accepted unprotected relations, or when the context does not allow inferring such conditionality, the typical nuclear element fails. Second, the invincible error of type (Art. 14 CP) due to reasonable belief that the partner accepted continuing without protection: when there is ambiguous behaviour, words or conclusive acts that allow reasonable belief of modification of the initial agreement, typical intent is excluded. Third, the psychological expert evidence on victim's testimony: application of CBCA/SVA protocols by qualified forensic psychologists examining internal coherence of the narrative, possible spurious motivation (conflictive breakups, custody, spite), and reality versus invention criteria. Fourth, the digital forensic extraction: WhatsApp, Instagram, Telegram, emails before and after the encounter can prove the absence of express conditionality of consent, the normality of subsequent interaction, or the presence of motives that question the credibility of the accusation.

In current forensic practice, stealthing is an emerging criminal figure that the Plenary of the Supreme Court classified in 2024 as sexual assault under Art. 178.1 CP. Organic Law 10/2022, LO 4/2023, Directive 2024/1385/EU on violence against women and LO 1/2025 on Justice Service Efficiency have configured an increasingly demanding protective framework. Social awareness campaigns and the increase in reports have generated sustained growth of proceedings. At Alonso Sala, our criminal lawyers specialized in stealthing and conditional consent intervene both in defence of the accused and in assistance to victims. As defenders, we articulate independent psychological credibility expert reports, forensic extractions of digital communications to prove the absence of express conditionality, and technical challenges based on error of type or absence of typical elements. As private prosecution on behalf of victims, we coordinate urgent medical assistance (emergency contraception, STI prophylaxis), articulate psychological expert reports to prove moral damage, and request protective precautionary measures. In both roles, immediate action is critical to preserve digital and medical-forensic evidence.