[Wellsy]

I’ve witnessed a debate about stealthing being equivalent to a woman lying about being on birth control.
Stealthing is when a man removes a condom or has sex without one after it was agreed that sex was conditioned on them wearing one. Some courts have recognized it as a wrong, like sexual battery and not sexual assault as it doesn’t involve force/coercion. However, it has been judged as valid only because women experience physical risks and harms if a man doesn’t wear a condom such as STDs and an increased risk of pregnancy. Things which severely impact a womans health.
However cases of men making similar claims of fraud when a woman got pregnant and lied about taking birth control have failed due to the narrow interpretation of harm as physical only.

https://thewalrus.ca/is-it-illegal-to-lie-about-using-contraception/

The requirement that, to cancel out consent to a sexual act, a fraud must expose the complainant to a risk of bodily harm is not found in the Criminal Code. It comes from R v. Cuerrier, a case from the Supreme Court of Canada decided nearly twenty years ago. Cuerrier dealt with whether choosing not to disclose that a person was living with HIV cancelled out the consent of his sexual partners. The majority of the Supreme Court of Canada struggled then with the same question in Hutchinson—how deception affects consent—and decided that our sexual assault laws should be extended to catch only those lies that create a risk of physical harm.

But that case, too, featured strong dissents, one by famed feminist Justice L’Heureux-Dubé, who argued that the majority’s interpretation missed the point of sexual assault law entirely. In Justice L’Heureux-Dubé’s view, fraud should be defined in relation to an individual’s consent, not their risk of experiencing harm. What mattered was not “the presence of physical violence or the potential for serious bodily harm,” she wrote, “but the violation of the complainant’s physical dignity in a manner contrary to her autonomous will.”

When it comes to deceptions and contraception, our courts have continued to focus on physical harm instead of physical dignity, on the risk faced instead of the agreement breached. But the interviewees in Brodsky’s stealthing study were clear that what happened to them was not at all what was agreed to; that one’s sense of sexual autonomy includes the right to choose sex with a condom, not just sex; and that deliberate condom removal is a violation of that right. In her article, Brodsky also uncovered a deeply troubling connection between stealthing and sexual violence, reviewing online posts and discussions where “stealthers” justified the practice as an extension of male supremacy; a male “right”; something that women “deserve”; something that women “have to take.” This undercurrent of sexual violence helps explain the feelings of disempowerment and violation that victims reported—and it is one that goes unrecognized, and undeterred, under our current legal model.

While some cases will feature the requisite risk of harm to ground a conviction, others may lack it—where there is no possibility of pregnancy, for example, as with same-sex partners, or women who are on birth control or not capable of having children. Justice, in a sense, is something gambled on the presence of a physical risk, not promised by the law’s protection of sexual autonomy. Perhaps, in the law’s efforts to avoid uncertainty and promote restraint, it has continued to miss the point when it comes to what kinds of deceptive sex we punish, and why.

I am sympathetic to the point of basing battery and assault under a principle of sexual autonomy but understand that any principle extended too far becomes an absurdity.
I do wonder that this fits with the principle of sexual autonomy but nags at the states sense of making fathers at least possibly financially responsible for their children.

And what are the contours if this dignity?
Is the experience of women who are stealthed similar to the wrong as it is experienced by men are is it just a dislike of the responsibility attributed for their biological offspring?

So, should a woman who lies about taking birth control to some reasonable degree for effectiveness be considered criminally equivalent to a man who stealths a woman?

[Godstud]

Yes
This is a difficult thing because you have to prove that there is a criminal motive. Sexual relations is already exceptionally complex(at times confusing) with modern ideas of consent.

Women saying they are on birth controls is more common, as can then have the baby and child support from the father whether he agrees or not to having the child. They are incentivized to have a children, particularly from a man who has lots of money/fame.
Drake Accused of Putting Hot Sauce in Condom After Sex
But the woman apparently had ulterior motives, specifically to impregnate herself. As such, she claimed to have fished the used condom out of the trash and put the contents into her vagina — except she said it felt like "pouring hot lava into her pussy."
https://www.papermag.com/drake-hot-sauc ... 97302.html

'Stealthing', first I have heard of that term, is bad, too.

Consent laws have to also apply to pregnancy, not just the act of sex. Consenting to sex is not consent to pregnancy.

Consent laws need to be redone, but if consent is not given, isn't it just a variation on sexual assault?

[Wellsy]

I voted yes both should criminal although I hold out on the prospect that to enact a similar criminal pursuit to stealthing may well produce some absurd pursuits in trying to navigate culpability for an extended and time sensitive thing like birth control where as the physicality of a condom is much more decisive as it is either on or it isn’t.

Yes
This is a difficult thing because you have to prove that there is a criminal motive. Sexual relations is already exceptionally complex(at times confusing) with modern ideas of consent.

I found a paper that argues that often the wrong in consent is about the content of what is agreed to rather than the conditions of consent, which means that the wrong can occur without intent, but with the same act.
https://www.journals.uchicago.edu/doi/full/10.1086/715283#:~:text=According%20to%20Dougherty%2C%20deception%20renders,then%20their%20consent%20is%20invalid.

Condom*:
Bryson and Evelyn meet at a bar and agree to have sex together, using a condom. At this time, Bryson is sincere about his willingness to use a condom, but he later changes his mind. Without discussing it with Evelyn, he removes the condom, and they have unprotected sex. Evelyn does not notice that he has removed the condom.

Bryson behaves externally the same way in Condom* as he did in Condom; the difference is in his private mental state at the time they agree to have sex with a condom. In our original version, he was deceiving Evelyn; in the new version, he was entirely sincere. In both cases, we submit, he subjects Evelyn to nonconsensual sexual contact, so the violation of her consent does not depend on his deception. (We don’t have to assume that he makes a point of hiding his condom removal; perhaps Evelyn just doesn’t notice.) We don’t see that removing the deception from Bryson’s statements or actions makes any significant moral difference to the sexual harm Evelyn suffers. If there is a moral harm attached to the lie in the first two versions of the case, it is not one that the later sexual harm depends on. The problem is that Evelyn is subjected to sexual activity—penetration without a condom—to which she has never even agreed, let alone consented.

Consent laws have to also apply to pregnancy, not just the act of sex. Consenting to sex is not consent to pregnancy.

While I can follow the example of consent to sex under a specific condition, which has to be made more explicit the less conventional it is, I don’t know pregnancy itself can be considered to invalidate your rights and consent.

As Dougherty puts it, S’s agreement to Φ is marred by deception in a way inconsistent with S’s valid consent to Φ if S is deceived about a dealbreaker. A dealbreaker is a feature of Φ to which S’s will is opposed, to the degree to which it “makes a decisive difference to [S’s] decision to [Φ].”14 We understand the notion of making a decisive difference in counterfactual terms. It’s not enough, for X to be a dealbreaker for your agreement to Φ, that you wouldn’t have liked X if you’d known about it; it has to be such that you would not have agreed to Φ had you known about X.

But this way of thinking about dealbreakers faces clear counterexamples. Here, for example, is a case from Hallie Liberto: “A has sex with B, knowing there is a small chance that she might get pregnant. The sex that she has with B is sex that gets A pregnant. If she had known that the sex would involve impregnation, then A would not have agreed to have sex. However, she consents to the gamble—though not to the impregnation. In this way, A has sex that involves a feature that counts as deal-breaker, for her. Yet, A has still consented to the sex.”15

Formally speaking, the fact that this sex will result in pregnancy is a dealbreaker for A. It is a feature of the situation such that, if A had known about it, A wouldn’t have agreed to sex. It is easy to imagine further examples along these lines.16 Some sex is disappointing. Many people would decline to have sex if they knew in advance that the sex would be disappointing, but their eventual disappointment doesn’t invalidate their consent. None of this remotely suggests that any such sex is nonconsensual; it is no violation of your rights, despite the presence of an unknown dealbreaker.

Getting pregnant in itself is a biological process outside of ones direct control other than having sex or not, or using contraceptives as it is inherently a risk.
As a possible outcome, it is distinct from things like wearing a condom and birth control which are actions of a person and not their bodies as a result of their actions. It is hard to disentangle sex from the possibility of pregnancy and as such I fond it difficult that anyone justice system would recognize an undesired outcome as a harm to ones sexual autonomy and thus invalidate one’s consent.

One thing though is I wonder if one does go that a man’ consent is broken of he would have only had sex with a woman if she were on birth control and she gets pregnant, how one would practically determine an effective use of birth control, what is the cut off point. When does a woman become culpable of having wrong a man for saying they were on birth control and it fails or is it strictly not about its effectiveness but some range in which it is thought reasonable to say you are currently on birth control.

Consent laws need to be redone, but if consent is not given, isn't it just a variation on sexual assault?

I’ve heard of legal distinctions between sexual battery and assault. Battery is the unwanted contact of the genitals whereas sexual assault is any unwanted sexual act done through coercion and force. So it still has significant consequences but is less severe of a crime.

[Godstud]

Yes, @Wellsy, it's a very very complex issue.

There should, however, be consequences for engaging in sex in a fraudulent manner, though. i.e. Trying to get a woman pregnant or trying to get pregnant without the consent of the other person.

[wat0n]

Other - stealthing should be criminal only if it ends in an unwanted pregnancy or physical harm.

Lying about birth control shouldn't be criminal at all.

Victims of both should be civilly compensated by the perpetrator, with an aggravation if lying about birth control leads to a birth. The standard of proof for both should be "beyond reasonable doubt".

[Godstud]

Other - stealthing should be criminal only if it ends in an unwanted pregnancy or physical harm.

STIs are a thing, and if a person wants their partner to wear a condom, then they should. It's part of giving consent.

Lying about birth control shouldn't be criminal at all.

If the person you are with will only have sex with you if you are on birth control, then you are committing fraud by lying about it. Actions have consequences. This is not just about one sex, but both.

Victims of both should be civilly compensated by the perpetrator, with an aggravation if lying about birth control leads to a birth.

So you are saying that it's fraudulent. It needs only be addressed in cases where an STI is transferred or a pregnancy occurs, but ignoring the problem does not help anyone.

The standard of proof for both should be "beyond reasonable doubt"

. That is only the case in criminal court, and not in civil court.

[wat0n]

STIs are a thing, and if a person wants their partner to wear a condom, then they should. It's part of giving consent.

STIs count as "physical harm".

For the latter, I agree but it could be just left as a civil claim.

If the person you are with will only have sex with you if you are on birth control, then you are committing fraud by lying about it. Actions have consequences. This is not just about one sex, but both.

So you are saying that it's fraudulent. It needs only be addressed in cases where an STI is transferred or a pregnancy occurs, but ignoring the problem does not help anyone.

But should the consequence be a criminal matter?

. That is only the case in criminal court, and not in civil court.

I'm not sure it would be necessary for a case to be criminal for the "beyond reasonable doubt" standard to apply. IIRC the Due Process Clause doesn't really bar the standard to be applied to civil cases, it only mandates it for criminal cases due to the consequences of being convicted for one, although I don't know if there are any state or federal laws that use it for specially serious civil cases.

I think the standard of proof needs to be high to prevent abuses (i.e. hard to impossible to disprove accusations of stealthing or lying about birth control). I think it would be necessary to prevent abuses for the latter, allegations of lying about taking birth control, since if proven it would effectively diminish or eliminate the father's obligation of paying child support so the standard of proof needs to be higher than normal. For stealthing, "beyond reasonable doubt" is already the standard wherever it is considered a crime but if it is not constitutional then I would try the highest standard possible. Possibly, "clear and convincing evidence".

I would also be satisfied if both were a crime, but without a jail sentence - being just a misdemeanor carrying a fine. I am however not entirely sure if this is truly an offense against the state, keeping in mind there are some examples of fraud that are only civil offenses.

[Godstud]

Yes, I am not saying that this should result in prison time. I don't see that being necessary unless this person is a repeat offender. It should be considered a misdemeanor unless it happens repeatedly.

[Wellsy]

I do want to dig more deeply into the wrong of consenting to a sex act because it’s not self evident that one should consider every instance of not receiving the specific nature of the sex act one consented to is to be dealt with in courts whether civilly or criminally.
Do we find it acceptable that a woman could sue a man of he lied about being married and we she was explicit that she would only sleep with him if he was single. This is in fact fairly normative such that it may not need to be said explicitly as the content of ones consent need not be stated explicitly to be understood.

If someone asks for a kiss, its not permission to kiss someone anywhere but normatively expected to be on the lips. So while there is a wrong there, why do we elevate some to being possibly criminal or worth a civil lawsuit?

And here is a specific case in Ontario that also helps push back the concern about child support as the man only claims damages for emotional harm and is willing to provide financial support.
https://familyllb.com/2016/04/21/for-man-tricked-into-unplanned-parenthood-can-he-sue-for-damages/

However, in examining this novel claim, the court found that the man had framed his cause of action incorrectly, by relying on the tort of fraudulent misrepresentation. That tort was used to compensate for damages for economic loss, i.e. restore the injured party to the financial position he or she was in previously.

Admittedly, the man had likely established all the other necessary elements of fraudulent misrepresentation (i.e. a false statement, knowledge that the statement is false, an intent to deceive, and the statement inducing the man to act). But what he could not prove was that he suffered economic damages. Aside from having to pay child support (which the man was not resisting), he had no financial losses from the woman’s pregnancy or childbirth. He was not married to her, was not obliged to marry her, never lived with her, and never established any long-term relationship. He did not contract any STDs, and would not experience any disruption of his career as a doctor. The court pointed out that:

… compensation for fraudulent misrepresentation … is designed to restore the injured party to the financial position he or she would have been had the wrongdoing not occurred. [The man] obviously cannot be restored to the emotional state of non-fatherhood and so his claim for non-pathological emotional harm makes no sense for the conventional use of the tort of fraudulent misrepresentation.

In other words, the man was trying to use the tort of fraudulent misrepresentation – which usually compensates for financial damages – to further his asserted claim for emotional harm. The court concluded that this made his action “a novel one” because it would “expand the scope of fraudulent misrepresentation and take it into new territory.” The court ultimately concluded that this was both unnecessary and undesirable on legal policy grounds.

The court struck out the man’s lawsuit as disclosing no reasonable, legally-recognized cause of action, and refused to allow him permission to amend it to state the tort claims differently.

And to push back the issue of women getting pregnant isn’t considered a harm based on the desirability of the child but of how it impacts the woman’s health.
So as stated earlier, it seems untenable to sue on the basis of an unwanted child and one would have to investigate the relationship of the wrong between getting pregnant and contraceptives and consent.
Because the wrong in the content of consent is simply focused structurally on how consent is given to a specific thing and not fulfilled but doesn’t necessarily tell us why we might judge someone impersonating someones husband as raping someone but someone going on a date and pretending to like their art or vote for a particular political party is not.

We don’t see all claims as normatively justifiable and make pushing sexual autonomy to an extreme absurd on the face of it even while ideally everyone gets the sex they want.

It seems it gets into the responsibility for a child and pregnancy which is intimately tied to sex even with contraceptives which are highly successful even when improperly but used well enough.

[wat0n]

In the Oregon case, if the man gets damages he is effectively diminishing his child support obligations.

If he has to pay $100 a month as child support and he has been paid $100 a month back as a civil claim for the mother's lies about taking birth control, the net result is that she'll have to take full financial responsibility for the child. Not that I necessarily disagree with that in this situation, but I think this is something to take into account since he still keeps some parental rights even if he doesn't have custody.

Because of that, the standard of proof for that claim (that she lied about taking birth control) needs to be high. To protect the child, basically, not her.

If she didn't get pregnant, I also think no damages should be actually awarded but she should be left in a publicly available registry for fraudsters (yes, this should be a thing for fraud in general).

[snapdragon]

It’s definitely the wrong thing to do, but would be very difficult to prove. Especially as no birth control is 100% fail safe.

All we can do is ensure we ourselves are using reliable birth control that nobody else has access to.

[AFAIK]

Lying about birth control is immoral but I don't think it should be illegal. I tried reversing the genders and asked if it should be illegal for a man to lie about having a vasectomy or being infertile. Or if it's less harmful to lie to a woman who cannot become pregnant. I think the condom plays an important role independently of concerns about pregnancy and disease and don't think it's reasonable to compare the two.

It would be analogous to agreeing to go swimming with someone and when you turn up they take off their swim suit. Just because you agreed to go swimming doesn't mean you agreed to go skinny dipping and the objection to nudity has nothing to do with the risk of physical harm.

[Skynet]

No it should not be a crime, because too many laws are not good for a society.

[Godstud]

You can make it a law, but many laws are nigh impossible to enforce.

[MistyTiger]

I think both should be illegal. The issue is about consent. A woman should not lie about being on birth control. If she has to lie, then she is with the wrong man.

Stealthing is wrong. If a woman expects the man to keep the condom on, he should honor her request to keep it on. The man does not have her consent to take it off from the beginning.

[Wellsy]

No it should not be a crime, because too many laws are not good for a society.

I think this is too general a statement to be true though it has validity up to a point.

That is the reason so e laws are bad is that is becomes an obstruction to sealing with things, red tape. But many laws are helpful when properly written and enforced, although new laws often need tweaks due to unforeseen situations applying to the law in principle until dealt with by judges.

[Deutschmania]

Other I feel that they should both be civil offenses, otherwise both parties would be subject to assumed risk. The woman to unwanted pregnancy and the man to possible child support obligations. Unless bodily harm results, such as with an STD , I don't necessarily believe that either should be deemed criminal transgressions. I think the hardest part however would be proving deception , as it could end up with a he said she said situation.

[skinster]

Yes, they should both be crimes.

[Unthinking Majority]

Both should be crimes. But never give your woman the benefit of the doubt on this fellas, always do your due diligence. The pill can also fail. If your sperm swims in her cervix it's your fault.

[wat0n]

Lying about birth control is immoral but I don't think it should be illegal. I tried reversing the genders and asked if it should be illegal for a man to lie about having a vasectomy or being infertile. Or if it's less harmful to lie to a woman who cannot become pregnant. I think the condom plays an important role independently of concerns about pregnancy and disease and don't think it's reasonable to compare the two.

It would be analogous to agreeing to go swimming with someone and when you turn up they take off their swim suit. Just because you agreed to go swimming doesn't mean you agreed to go skinny dipping and the objection to nudity has nothing to do with the risk of physical harm.

If the guy lied about having a vasectomy or his fertility? If it results in physical harm on the woman, sure, it should be a crime. If not, it should definitely be a civil case.