A two-bill legislative package sponsored by Assembly Democrats Louis Greenwald and Gabriela Mosquera to establish “stealthing” as a crime, and to amend certain provisions of a sexual assault statute by clarifying the necessary elements for conviction advanced in the Assembly Thursday.
The first bill (A-2766), would make stealthing, a term used to describe intentional removal or damage to a sexually protective device before or during a sexual act without the consent of a sexual partner, a third-degree crime–an offense generally punishable by 3 to 5 years imprisonment, a fine up to $15,000 or both.
“Not only is this a dishonest act, it is dangerous and a public health concern,” said Greenwald (D-Burlington, Camden). “This is about consent and the meaning it should have between two people. A person should have legal recourse if their partner commits the act of ‘stealthing.’ Without consent from both parties, it is sexual assault plain and simple.”
The bill stems from a report by Yale law student Alexandra Brodsky suggesting that “nonconsensual intentional condom removal during sexual intercourse exposes victims to physical risks of pregnancy and disease.” While statistics on the prevalence of stealthing are limited, a 2014 study by Kelly Cue Davis and colleagues reported that 9.0 percent of participants in their sample of young men reported engaging in condom sabotage, which included non-consensual condom removal.
The second bill (A-2767) would amend certain provisions of a sexual assault statute, making it consistent with current law as established by relevant case law.
“Now more than ever, in the age of the ‘me too movement,’ it is crucial that we strengthen law to empower sexual assault victims to speak up and speak out,” said Mosquera (D-Camden, Gloucester). “This is a devious act that puts women and men at risk for sexually transmitted disease and unwanted pregnancies in some cases. No should always mean no.”
Specifically, this bill would replace the term “physical force” in accordance with the New Jersey Supreme Court’s holding in State in Interest of M.T.S., 129 N.J. 422 (1992), which holds that the only requirement for a conviction under the sexual assault statute is proof beyond a reasonable doubt that there was sexual penetration and that it was accomplished without the victim’s consent.
Moreover, it would amend the statute to mirror the New Jersey Supreme Court’s determination, as determined in State v. Olivio, 123 N.J. 550 (1991), that a person is “mentally defective”, if at the time of the sexual penetration, that person does not understand the sexual nature of the conduct and is incapable of understanding their right to refuse the sexual act.
The bill also would amend paragraph (3) of subsection a. of the statute to clarify that the phrase “aggravated assault on another” refers to a person other than the victim, and adds the crime of carjacking as an aggravating offense.
The bill also would replace gender-specific language with gender-neutral terms
Both bills were introduced on February 1 and were released by the Assembly Women and Children Committee.