'Stealthing': sobre el objeto del Consentimiento en el delito de Abuso sexual

Abstract

A new term derived from English to allude to conduct whose criminal nature has become a novel international focus of attention has arisen in rulings in Spanish criminal law, alongside comparative criminal law. 'Stealthing', from the English stealth, is the term used to describe a specific sexual practice: non-consensual condom removal during consenting sex intercourse. This article explains the background of the practice and the reasons why criminal prosecutions have only taken place in recent years when the behaviour itself, as well as the legal instruments ultimately applied, have long since existed. It then provides an analysis of the specific harm caused by the practice, in addition to its subsumption into positive law. Firstly, this is done by specifically looking at experiences from other jurisdictions, such as Swiss law (which has invoked article 191 SchStGB) or, particularly, German law after the 2016 reforms (§177 StGB). In turn, the analysis places special focus on the strengths and weaknesses of different assessments made by Spanish judicial authorities that, to date, have led to highly disparate convictions.