What is stealthing

OLG cancels acquittal for "stealthing": Secretly unprotected sexual intercourse is punishable

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A man who secretly removes the condom during sexual intercourse against the will of his partner is liable to prosecution for sexual assault. That was decided by the Schleswig-Holstein OLG.

If a man secretly removes the condom during sexual intercourse, although a partner has expressly consented to the act only with a condom, this constitutes sexual assault. The Schleswig-Holstein Higher Regional Court (OLG) came to this conclusion on Friday (ruling of March 19, 2021, Az. 2 OLG 4 Ss 13/21).

The judges then overturned an acquittal by the Kiel District Court (AG) on a case of so-called stealthing - derived from the English term "stealth", which can be translated as secrecy.

The man had to answer before the AG Kiel because he had been accused of having removed the condom unnoticed by the victim during a break in sexual intercourse and continued intercourse unprotected. According to the court, the victim had pointed out to the accused several times earlier that day that she only wanted sexual intercourse with a condom. It was only afterwards that the victim noticed that the accused had continued sexual intercourse unprotected.

Stealthing is generally punishable under Section 177 (1) of the Criminal Code

The AG had acquitted the man in November 2020 because it did not consider the accused to be a criminal offense. Both the public prosecutor's office and the joint plaintiff had appealed against the decision.

The Schleswig Holstein OLG has now come to a different conclusion. In the oral justification for the judgment, the chairman stated that stealthing basically fulfills the criminal offense of sexual assault in accordance with Section 177 (1) of the Criminal Code (StGB). If a victim declares before sexual intercourse that he / she only agrees to it with a condom, the unprotected penetration could also be punishable as sexual assault within the meaning of Section 177 (1) StGB if the victim does not notice the lack of the condom during sexual intercourse.

The criminal senate referred the matter back to AG Kiel for renewed negotiation and a decision.

mgö / LTO editorial team

With materials from the dpa