Removing a condom during sexual intercourse after the sexual partners agreed on its use may be classified as sexual assault or rape if House Bill No. 3957 becomes law.
HB 3957, filed by Ako Bicol partylist Representative Alfredo Garbin and Elizaldy Co, wants to refine the description of sexual assault as stipulated in the Revised Penal Code or in the Anti-Rape Law of 1997. The fine-tuning will be done via inclusion of “stealthing”, which would occur when a person causes his or her partner to believe that he or she had used or is currently using a protective device, causing his or her partner to consent to having sexual activity, but in fact that person was not using or did not use the contraceptive device.
In a statement, Garbin said HB 3957 refines the description of how sexual assault is being made because the act of “stealthing” is not expressly stated in the Revised Penal Code or in Republic Act 8353 or the Anti-Rape Law of 1997.
Other “stealthing” incidents during sexual activity include removing any protective device without the consent of the partner, tampering or damaging any protective device, or intentionally infecting or impregnating the sexual partner through the said acts.
The first three acts would still be considered “stealthing” even after their discovery by the sexual partner or even if a protective device was subsequently used during the sexual activity.
But condom is not the only contraceptive included in the bill. According to Garbin, “the more inclusive term of ‘protective device’ is used… so that if there are other protective devices other than the condom, then those will also be covered in the bill.”
With HB 3957, Garbin and Co also wanted to be gender-inclusive. So “the definition of sexual assault would be strengthened with a definition which uses the gender-inclusive word ‘sexual partner’. In RA 8393, the word ‘other person’ is used to refer to the victim of the male offender,” Garbin said. With this bill, “Even if the victim is not a woman, the victim can avail of protection and remedies provided by the law on rape and sexual assault.”
This would – in idea – enable any person regardless of sexual orientation, gender identification or expression to file sexual assault charges against the male who violated them.
Those found guilty of committing the acts of “stealthing” during sexual activity would be slapped with jail time of 12 years and one day to 14 years and eight months, and a fine of not less than P100,000 but not more than P500,000.
If the victim was infected with a sexually transmitted disease or was impregnated, the penalty to be imposed on the violator would be jail time of 17 years and four months to 20 years, and a fine of not less than P200,000 but not more than P700,000.
If the violator intentionally infects or impregnates their partners through the acts of “stealthing,” the penalty would be jail time of 20 years and one day to 40 years, and a fine of not less than P1 million but not more than P5 million.
Meanwhile, if the victim withdraws consent after knowing that an act of “stealthing” was being committed, yet the violator continued with the sexual act, the latter would be liable for rape.
If House Bill 3957 became law, Garbin hoped that it would “lead to fewer cases of sexual assault involving sexually-transmitted diseases and help in the war against HIV-AIDS.”
This latter part, however, is aligned with the ill-conceived notion of criminalizing PLHIVs with the automatic yet false assumption that having HIV means automatically transmitting the virus even if there is now consensus that treatment as prevention works, with PLHIVs with undetectable viral load do not transmitting the virus via sexual contact.
