What Is Stealthing, and Is It Rape or Sexual Assault in the UK?

"Stealthing" is the term used when someone removes a condom during sex without their partner's knowledge or agreement, having agreed to use one. It is not named as an offence in any statute. But in England and Wales it can be prosecuted as rape, under the developing principle of "conditional consent". This guide explains how the law works and what to expect if you are accused.

How consent works

Under section 74 of the Sexual Offences Act 2003, a person consents if they agree by choice and have the freedom and capacity to make that choice. Consent can be given on conditions. If someone agrees to sex only with a condom, they have not agreed to sex without one.

Rape under section 1 is committed where a person intentionally penetrates another with their penis, the other person does not consent, and the accused does not reasonably believe they consent. Penetration is a continuing act, so consent can be withdrawn, or cease to apply, during sex.

Read our guide to consent in UK sexual offence law and our overview of the Sexual Offences Act 2003.

The key cases on conditional consent

• Assange v Swedish Prosecution Authority (2011): the High Court accepted that if a person agreed to sex only on condition that a condom was used, sex without a condom could amount to rape under English law.
• R (F) v Director of Public Prosecutions (2013): the High Court held that where consent was given on condition that a partner would withdraw before ejaculation, deliberately not doing so could mean there was no consent.
• R v Lawrance (2020): the Court of Appeal quashed a rape conviction based on a lie about a vasectomy, holding that deception about the risks or consequences of sex, rather than the physical act itself, does not usually remove consent.

Together these cases mean that conditions about the physical act, such as using a condom, can be legally significant, while lies about wider circumstances generally are not. The first stealthing conviction in England and Wales came in 2019, and there have been further convictions since.

How the CPS approaches stealthing cases

The Crown Prosecution Service treats stealthing as an example of conditional consent. Because these cases are legally complex, charging decisions in conditional consent cases are referred to senior CPS lawyers. Prosecutions are still relatively rare, partly because of under-reporting and partly because the evidence often comes down to what was agreed and what each person knew.

What evidence is used?

Stealthing cases usually turn on two questions: what was agreed, and whether the removal was deliberate.

• messages before and after the encounter, including any discussion of condoms,
• dating app conversations setting out expectations,
• what each person says happened, and when the complainant realised,
• any admission afterwards, for example in a message or conversation, and
• medical evidence, such as a visit for emergency contraception or STI testing.

Messages sent afterwards, even ones meant as an apology or explanation, can become central evidence. Do not contact the complainant, and do not delete anything. See our guide to digital evidence.

Possible defences

• No condition was agreed: condom use was never made a condition of consent.
• Accident: the condom broke or came off without the accused realising.
• Agreement to remove it: the complainant agreed, or the accused reasonably believed they agreed, to continue without a condom.
• Reasonable belief in consent, judged on all the circumstances, including any steps taken to check.
• The allegation is untrue. See defending false allegations.

Sentencing

If convicted, stealthing is sentenced as rape, under the Sentencing Council guideline. The starting point for the lowest category is five years, within a range of four to seven years, and sentences can be considerably higher depending on harm, such as pregnancy or a sexually transmitted infection, and culpability. See our guide to rape sentencing guidelines. A conviction also brings notification requirements: see the sex offenders register.

What to do if you are accused

• Do not attend a police interview without a solicitor. Advice at the police station is free.
• Do not contact the complainant, including to explain or apologise.
• Keep all messages and app conversations.

Our page on rape defence explains the investigation and court process, and our guide to police interviews explains what to expect.

Frequently asked questions

This article is general information about the law in England and Wales, not legal advice.