Timothy O. McCalep

Issue of consent at center of debate around practice of “stealthing”

Previously, we began looking at the troubling practice of “stealthing,” which is becoming increasingly popular even as some are urging states to make adjustments to sexual assault laws to make the practice clearly illegal. At present, Georgia law doesn’t really address the issue of stealthing, but some criminal measures move in that direction.

Under Georgia law, those who cause bodily harm to or endanger the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk of harm may be found guilty of a misdemeanor. In such cases, the disregard must rise to the level of a gross negligence. This presumably encompasses sexual activity that presents risk of harm to another, though it isn’t clear if stealthing would fall within the definition of this measure. 

In addition, Georgia law also makes it illegal to knowingly transmit HIV to sexual partners. Stealthing, of course, may or may not involve the knowing transmission of HIV, but it certainly could. Other than these measures, there doesn’t seem to be anything in Georgia law that would include the practice of stealthing. Prosecutors can certainly become creative when they need to be, however.

As we noted last time, the primary issue with stealthing is the issue of consent, and whether sex that is otherwise consensual may be deemed nonconsensual by the removal of a condom during the sexual act. In any case involving allegations of sexual assault or rape, of course, the question of consent is an important one.

Consent, in Georgia, generally refers to permission. For purposes of criminal charges, there is no requirement in Georgia that consent be affirmative, meaning that consent is not dependent upon explicit permission. Consent to sexual activity may be provided without an affirmative agreement, but there are a number of factors that can affect the ability to provide consent.

We’ll continue looking at this issue in our next post, and how an experienced attorney can help sexual assault defendants navigate legal issues surrounding consent.  

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