Lawmakers in two states, Wisconsin and California, introduced legislation this week that would make it a crime to engage in a behavior popularly referred to as “stealthing”: the intentional removal of condoms during sexual intercourse without consent. According to the California bill’s sponsor, Assemblymember Cristina Garcia, the new law is needed because “penetration without consent is rape.”
Let’s be clear: This behavior is egregious and ethically wrong. But there is good reason to step back from the recent media frenzy to consider more carefully whether we truly need new legislation to respond to it. In the first place, existing sexual assault and/or assault statutes might be sufficient to prosecute such behavior.
Second, this allegedly new phenomenon has all the trappings of a classic moral panic: News outlets proclaim the rise of a supposedly new, taboo behavior (often sexual in nature), and lawmakers respond by introducing new legislation to tackle the issue. The Mann Act — better known as the “white slavery” act — is the archetypical example of this phenomenon: Passed in the 1910, the vaguely written law was prompted by the spread of pamphlets and books that suggested that American girls were being seduced into a life of prostitution or “white slavery.”
More recent efforts to crack down on what is now called “human trafficking” have come under similar criticism from feminist scholars and advocates. For example, in a recently published collection of essays that I coedited, The War on Sex, activists and scholars take California’s Proposition 35 from 2012 to task; although the proposal was marketed as a necessary tool for cracking down on coerced sex, the actual legislation had much more far-reaching implications that also targeted garden-variety prostitution.
Reactionary legislative campaigns such as these often have unintended consequences. The Mann Act was so broadly written that it was used to criminalize consensual sex between adults (including interracial relationships). Legislation hurriedly introduced in response to a vaguely defined social problem risks creating new laws that can be used to crack down on a much wider set of practices than originally envisioned.
The stakes are high in terms of a criminal law — we ought to take care to make sure we get it right. Incarceration is a severe penalty that has effects that persist long after a person leaves jail or prison. It contributes to patterned unemployment, housing instability, and family dissolution.
Unfortunately, if we do get it wrong, we’re likely to be stuck with any new law for a very long time. Lawmakers are loath to repeal criminal legislation, for fear of appearing soft on crime. (Case in point: Though amended several times, the Mann Act is still on the books to this day.)
The inequality pervasive in the criminal justice system should give us additional pause. Countless studies have documented vast racial disparities in criminal law enforcement. In short, black and Latino young men are likely the ones to pay the price for poorly conceived legislation.
For these reasons, I urge lawmakers to reconsider hasty efforts to enact new criminal laws targeting this reported problem. For the sake of American justice, we ought to be sure before we act.
Trevor Hoppe is the coeditor of The War on Sex and the author of Punishing Disease. He is currently an assistant professor of sociology at University at Albany, part of the State University of New York system. Find him on Twitter @trevorhoppe.