The New York Post recently ran the following headline: “‘Stealthing’ is the newest dangerous sex trend.”

I had no idea what stealthing was until I read the article, and I became enraged at what some predatory men are willing to do. These men agree to wear a condom during sex but then surreptitiously slip it off before ejaculating. By engaging in this “stealthful” misconduct, they expose their female sex partners to the risk of unwanted pregnancy, and their male and female partners to the risk of STDs. Many of these deceived partners would never have consented to have unprotected sex, and they did not consent to the man removing his condom.

But before jumping to the conclusion that stealthing constitutes rape, one should consider flipping the genders and posing similar questions. Would it — should it? — be rape for a woman to tell her potential sex partner that she is on the pill or wearing a diaphragm when she is not? The man in that case consented to having sex with a woman who told him she is protected against unwanted pregnancy. He did not consent to having sex that poses a significant risk of unwanted fatherhood. There are of course important differences. The risk of unwanted pregnancy by the man is similar to that of the woman in the stealthing situation, but there is not the added risk of STDs. Moreover, women carry a heavier and more immediate burden from an unwanted pregnancy. Finally, birth control is more difficult and sometimes medically challenging for women than for men. That said, the man who is deceived by the woman has the right not to father a child by deceit, even if he is never told of the resulting pregnancy.

The issue of sex by fraud goes beyond stealthing and deceptive label pins. Both men and women, but especially men, often make fraudulent overtures in an effort to secure consent to sex.

While stealthing may be a new phenomenon, there is nothing new about predatory men tricking women into having sex. Many years ago, I was having drinks with a group of friends at a restaurant in Cambridge when a friend of one of my friends joined us. He was wearing a lapel pin with a circular arrow broken by a line. I asked him what it was and he told me it was a pin signifying that the wearer had undergone a vasectomy. I asked him why he would wear such a pin, and he said that it helped him persuade women to have sex with him. He was in his early thirties, so I asked him why he’d had a vasectomy. His response was, “I didn’t get a vasectomy. I just got the pin.” He then asked us all whether we would like pins because he knew where to get them. Everyone laughed and one guy said, “Sure, I could use one.” I stood up, pointed to the guy wearing the pin, and announced in a loud voice what he was doing. Mortified, he slunk out of the restaurant. Some of my friends were angry at me for embarrassing him, but others were appreciative. A number of women thanked me.

The issue of sex by fraud goes beyond stealthing and deceptive label pins. Both men and women, but especially men, often make fraudulent overtures in an effort to secure consent to sex. They overstate their financial situations, inflate their job description, make promises they do not intend to keep, claim to be single when they’re married, deny having an STD. In many of these cases, the deception is the “but for” cause of the consent — the partner would never have consented to the sex but for the deliberate lie.

It is the function of the law to draw lines — sometimes imperfectly — between what is criminal and what is merely unethical. Stealthing should fall within the criminal line, though perhaps not under the existing law of rape. Willfully lying about an STD should also be a crime. Puffing about jobs and lying about marital or relationship status should probably fall on the merely unethical side.

Bottom line: The law must keep up with new tactics for obtaining sex without full and informed consent.

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