Germany’s highest civil and criminal court has ruled that the act of “theft,” or non-consensual removal of a condom during sex, can now legally be classified as sexual assault, a court spokesman said Wednesday.
The recent ruling, although overturned due to a small formal error, represents the first detailed discussion of the Federal Court of Justice (BGH) on the subject of stealthing.
The court ruling was based on the consideration of a case handled by a regional court in Dusseldorf, northwestern Germany, involving a sexual encounter between a woman and an IT professional.
The man had taken a condom out of its packaging in his bedroom and pretended to be wearing it. The woman, who had turned away, didn’t notice that after all she hadn’t put on the protection.
The woman stated during the court proceedings that she would never consent to unprotected sex, therefore making the case non-consensual sex.
The Federal Court of Justice ruled that the regional court was right to consider the act of sexual assault. The fact that the woman had had unprotected oral sex with the man shortly before was irrelevant to the case, the court stressed. The spokesman added that the regional court could have even convicted the man on charges of rape, not sexual assault.
The formal error which had led to the overturning of the case was due to the fact that the regional court had not given the defendant sufficient notice. The case must then be retried.
The regional court in Dusseldorf originally sentenced the serial dating app user to three years in prison on different charges.