Among the 770 bills California Gov. Gavin Newsom signed into the law during the state’s busy 2021-2022 legislative session were several robust packages aimed at improving reproductive justice. The new “Momnibus Act” tackles the state’s maternal and infant mortality rates, and racial discrepancies within them. Another suite of legislation is designed to protect access to abortion and reproductive health care, including an increase in penalties for impeding access to those services with threats and intimidation.
Two of those hundreds of bills were less touted in gubernatorial press releases. But these laws, both the first of their kind in the nation, not only reinforce California’s legislative commitments to reproductive autonomy but also expand its legal parameters.
SB 374, which Newsom signed in July, added “reproductive coercion” to the definition of “disturbing the peace of the other party” for purposes of obtaining a restraining order under California’s Domestic Violence Prevention Act. And AB 453, which the governor signed in October, bans removing a condom without a partner’s verbal consent during sexual intercourse, a practice popularly known as “stealthing.” The bill makes the act a civil sexual battery offense, entitling victims to sue for damages.
California adopts these laws against the backdrop of a national battle over reproductive rights, as the constitutional right to an abortion is once again before the U.S. Supreme Court. At the beginning of this month, the justices heard arguments in two cases challenging a Texas law banning almost all abortions, which took effect in September after the high court declined a prior emergency request to block it.
SB 8, which prohibits doctors from performing abortions after roughly six weeks of pregnancy — well before many patients know they are pregnant — makes no exceptions for rape or incest and relies on enforcement by private individuals. The law is in direct conflict with the Supreme Court’s landmark rulings in Roe v. Wade (1973) 410 U.S. 113 and Planned Parenthood v. Casey (1992) 505 U.S. 833. Those decisions established the constitutional right to obtain an abortion before the point at which a fetus can survive outside the womb.
And the justices are set to hear oral arguments Wednesday in another case directly challenging those precedents: Dobbs v. Jackson Women’s Health Organization, which involves a Mississippi law banning almost all abortions after 15 weeks. Although that law — HB 1510, or the Gestational Age Act — makes exceptions for medical emergencies and pregnancies involving a “severe fetal abnormality,” it doesn’t make exceptions for rape or incest.
Pamela Glazner, an attorney at San Mateo’s Emanuel Law Group who represents plaintiffs in civil sexual assault cases, said this backdrop is critical when considering the ultimate impact of legislation like SB 374 and AB 453.
Those laws are undoubtedly beneficial to survivors like her clients, she says, although their scope may seem narrow at first glance. But if the high court were to
overturn Roe v. Wade, or make another conservative ruling on reproductive rights, “some of these things that seem small could end up being massive.”
Expanding the sexual battery offense
The origins of AB 453, banning nonconsensual condom removal in California, lie in a 2017 paper in the Columbia Journal of Gender and Law by Alexandra Brodksy, who wrote it when she was a law student at Yale. Brodsky, who is now a staff attorney at Public Justice, argues in the paper that a new tort should be created for “stealthing,” noting that the “rape-adjacent” practice exposes victims to physical risks like unwanted pregnancy and sexually transmitted infections, and “is experienced by many as a grave violation of dignity and autonomy.”
“Apart from the fear of specified bad outcomes like pregnancy and STIs, all of the survivors experienced the condom removal as a disempowering, demeaning violation of a sexual agreement,” Brodsky writes. “Situating nonconsensual condom removal within the broad category of gender violence reveals that the practice is an ethical wrong with practical, psychic, and politically salient repercussions for its victims.”
Researchers believe the offense often goes unreported, but a 2019 study published in the National Library of Medicine found that 12 percent of the study participants, women aged 21-30, said they had experienced a partner engage in stealthing. In another study the same year, 10 percent of men in the same age group said they had removed a condom without their partner’s consent. And a 2018 survey of patients at a sexual health clinic in Melbourne, Australia found that 32 percent of women and 19 percent of men who have sex with men had experienced stealthing.
AB 453 makes removing a condom without a partner’s verbal consent during sexual intercourse a sexual battery offense under Civil Code section 1708.5. California Assemblymember Cristina Garcia (D-Bell Gardens), who authored the bill, said in a statement after the governor signed it that she was “elated that there is now some accountability” for perpetrators of the act. “I urge other states to follow in California’s direction and make it clear that stealthing is not just immoral but illegal,” Garcia said.
In her paper, Brodsky considers whether an array of existing legal remedies — criminal law, tort law, gender violence civil rights actions, and contract law — might be appropriate in addressing nonconsensual condom removal. But she identifies drawbacks in applying each of these to the offense and ultimately concludes that a new tort should be created for stealthing.
“Such a tort should prohibit the removal of a condom during sex without both partners’ affirmative permission,” Brodsky writes. She adds that a tort remedy allowing for compensatory and punitive damages, and injunctive and declaratory relief, would allow victims “to pursue remedies that would best address the varied harms” of the offense, as “victims experience nonconsensual condom removal in different ways, and a wide range of remedies provides an opportunity for personalized and creative legal interventions.”
By making stealthing a civil offense under California’s sexual battery law, AB 453 aligns pretty closely with Brodsky’s vision for those remedies. In describing how she might bring a case under the law, Glazner said establishing liability would be relatively straightforward if her client got pregnant or contracted an STI as a result of the condom removal. Absent either of those outcomes, she said the way to get damages for the client would be by proving emotional distress.
“I would be asking a lot of questions to figure out what those damages could be,” Glazner said — for example, “if the person had had a prior experience similar to that, and it had a negative outcome, or if they were somebody who would be particularly prone to being affected” by the offense. “It really depends on what I could understand from the victim,” she said.
Beyond the question of damages, Glazner said just having a law like AB 453 on the books is itself a step toward achieving justice for victims.
“There are all kinds of ways that women’s bodies are demeaned or controlled,” she said. If a law “identifies one of those ways, and puts it in writing, and says ‘No, this isn’t okay’…you really are vindicated in some way.”
Updating the DVPA
The origins of SB 374, meanwhile, were very close to home for the bill’s author, State Sen. Dave Min (D-Irvine). His wife, Jane Stoever, is a law professor at the UC Irvine School of Law and the director of the school’s Domestic Violence Clinic.
In her two decades of domestic violence advocacy work, Stoever heard stories of clients whose abusive partners reneged on a prior agreement to use a condom, or sabotaged contraceptive methods in other ways. At the UCI clinic, one client who experienced frequent forced sex from her boyfriend begged him to use condoms — which they’d agreed to use before, and were sitting right there on the nightstand. Refusing, the boyfriend said, “Just use Plan B.” The client came to the clinic after she got pregnant from an episode of the forced sex.
“Our Domestic Violence Prevention Act here in California identifies sexual assault as something that constitutes domestic abuse,” Stoever told CEB. “But that may or may not match someone’s understanding of reproductive coercion.”
So Stoever brought the issue to her husband. A year earlier, the Legislature had passed a bill adding “coercive control” to “disturbing the peace of the other party” under Family Code section 6320, which is a basis for obtaining a domestic violence restraining order in California. The amended statute defined “coercive control” as “a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty.”
With SB 374, introduced by Min and Sen. Susan Rubio (D-Baldwin Park), reproductive coercion is now also under that “disturbing the peace” umbrella. The amended statute defines reproductive coercion as
Engaging in reproductive coercion, which consists of control over the reproductive autonomy of another through force, threat of force, or intimidation, and may include, but is not limited to, unreasonably pressuring the other party to become pregnant, deliberately interfering with contraception use or access to reproductive health information, or using coercive tactics to control, or attempt to control, pregnancy outcomes.
Reproductive coercion has long been recognized in medical literature. A 2010 survey of female patients aged 16-29 at five Northern California family planning
clinics found that 19 percent of respondents reported experiencing “pregnancy coercion,” and 15 percent reported birth control sabotage. A third of respondents who reported partner violence also reported reproductive control.
In a letter to the governor on behalf of the UCI Domestic Violence Clinic supporting SB 374, Stoever wrote that consequences of reproductive coercion include “unintended pregnancies, increased sexually transmitted infections, interference with reproductive health decisions, and increased levels of depression, substance abuse, and suicidality.”
California law “should be updated to more accurately protect survivors from this unique form of domestic violence,” Stoever wrote in the letter, pointing out that the state’s Domestic Violence Protection Act was passed more than 40 years ago, in 1979. SB 374 “provides necessary clarity” to the law and “empowers domestic violence survivors to identify the abuse they have experienced and enables judges to provide necessary legal protection,” she wrote.
Reflecting on the legislation weeks after the governor signed it into law, Stoever told CEB that she sees SB 374 as operating in the same vein as AB 453, the anti- stealthing law. Glazner, the sexual assault plaintiffs’ attorney, noted that laws like these can not only provide specific redress to individual victims, but can also “start to move the cultural conversation.”
“I think the law generally has an effect on culture and public perception,” she said. “In my view, all these niche things move the ball forward in a general sense.”
And considering the national stakes, with the Supreme Court poised to issue rulings with major implications for abortion rights in the coming months, Stoever said the new legislation reaffirms California’s commitment to reproductive autonomy.
“These laws are so significant in terms of centering consent, and an individual’s own decision-making and autonomy in terms of their own sexual health,” Stoever said. They’re “one more example” of “the power of naming something to recognize, legitimize, and remedy it.”
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