Lawmaker seeks to add civil definition of sexual assault known as 'stealthing'

PIERRE — There may soon be a specific civil course of action for survivors of sexual assault where a sexual partner removes a condom without consent during sex.

The act, known as stealthing, has happened to 43% of women, according to Rep. Kadyn Wittman, D-Sioux Falls, who sponsored HB 1204. And currently in statute, there is no specific legal course of action a survivor could pursue if they wanted to hold the perpetrator civilly liable.

“I have to say there's no doubt this is probably the most uncomfortable bill I will ever bring to the legislature in South Dakota but I am willing to endure discomfort during this committee hearing, if it means expanding avenues for justice for victims,” Wittman said, adding that her bill would allow victims to access restitution payments and compensation for attorney fees.

Georgilee Flynn, from Sioux Falls, spoke about her experience when in 2019 her partner removed the condom during sex, which later resulted in her becoming pregnant and giving birth to her son.

Her first Google search the day after the assault was “is it illegal for someone to take the condom during sex without the other person's consent?” Flynn said there were limited options and that she chose to stay silent. Even if she did seek child care support from the perpetrator, it could open the door for him to seek custody of the child.

“I'm here today begging for future victims to have a clear path to justice,” she said. “I desperately want their Google search results to look different than mine. I want them to immediately find a link for a codified law that validates their opinion and lets them know their trauma is a serious form of sexual violence that will not be tolerated in South Dakota.”

Main opposition came from a lobbyist for the American Property Casualty Insurance Association who said that the bill was unnecessary because under law, survivors of sexual assault have an opportunity to sue under the civil penalty and that the penalty was broad in its language.

More: South Dakota gets closer to defining 'consent,' creating new rape penalty

“Under the facts and circumstances that were laid to you earlier, I can't think of anything that fits more within that reckless disregard for another’s individual rights,” Doug Abraham said. “It is reprehensible but it's also already authorized as a cause of action under existing case law.”

Four lawmakers voted against the motion made by Rep. Peri Pourier, D-Rapid City, to pass the bill out of committee and to the House Floor.

Rep. Bethany Soye, R-Sioux Falls, said that stealthing was already covered under the civil statute and could also be charged under 4th degree rape, or sex without consent.

“We're making here a cultural assumption that there is such a thing as safe sex… but we have to get back to the biological reality of the sexual act is inherently meant to create life and there is no 100% way to prevent that except for abstinence,” she said.

Pourier said that there were gray areas within the criminal and civil areas of the law and that HB 1204 would allow for some specificity to the “layperson” who may not not the law as well as some of the lawyers who were in the room.

“We are in a modern age and we really shouldn't be thinking about are we rewriting laws for lawyers or are we rewriting laws for the public,” she said.

HB 1204 passed 8-4 and now heads to the House floor for debate.

This article originally appeared on Sioux Falls Argus Leader: Stealthing in South Dakota could become a civil penalty