Despite being condemned by all entities, there is no consensus to define a legal framework for the sexual act.
The practice known as “stealthing“, which consists of the non-consensual removal of the condom during sexual intercourse, has been a recurring theme in the country, especially after the PAN proposal to criminalize the act as a crime of sexual fraud. But the proposal faces resistance from several legal entities.
The PAN proposed that the stealthing was defined as “practicing a sexual act through falsification, fraud or concealment of relevant information that conditions consent”, with penalties of up to three years in prison.
However, the General Council of the Bar Association (OA), the Superior Council of the Public Prosecutor’s Office (MP), the Superior Council of the Judiciary and also the APAV (Portuguese Victim Support Association) disagree with the party’s suggestion, according to this Sunday.
So what is sex fraud?
For the Bar Association, the stealthing It should not be framed as sexual fraud. The latter is defined as “deception about the person’s identity”, while the stealthing constitutes a “practice of a sexual act in non-consensual circumstances, in violation of consent”.
Thus, the OAB recommends that a specific criminal type be created or that the practice be included in the crime of rapewith a criminal framework closer to this crime.
The definition of “consent” in the proposal also raises criticism from the OA and the MP, who consider it inappropriate to define this concept outside the criminal code: it violates principles of legality and legislative technique, say the entities, who also suggest that the penalty provided for the stealthing is aggravated in cases of pregnancy or transmission of sexually transmitted diseases.
The Superior Council of the Public Ministry expresses concern about the legal uncertainty of the PAN proposal: it considers that the removal of a condom without consent is a concrete act that does not adequately fit into the crime of sexual fraud, because fraud presupposes “taking advantage of the error of the victim about the identity of the agent”, while the stealthing it is “a mistake regarding one of the conditions that were determined to be essential for the pursuit of that specific sexual relationship”, quotes the newspaper Público.
Like the OAB, the MP recommends deeper reflection on the creation of an autonomous criminal type or the inclusion of the crime of rape, with penalties proportional to the severity of the act.
Stealthing could it be a violation?
The possibility of framing the stealthing as rape is defended by APAV, which believes that the practice meets the requirements of the crime of rape, as it takes away the victim’s full consent to the sexual act.
According to the association, the stealthing It represents a violation of sexual freedom and other fundamental rights of the victim, such as the right to choose pregnancy and protection against sexually transmitted diseases.
However, the OA and the Judiciary disagree with this approach. For lawyers, the crime of rape does not apply, as the sexual act is initially consensual, and consent is violated only by removing the condom.
