The Washington State Legislature passed a bill last week that will allow people to sue if someone removes a sexual barrier like a condom without their consent.

The bill (HB 1958) went through the House and Senate with no changes, said sponsor Liz Berry (D-Seattle), who wrote the proposal after a good friend shared her experience of a sexual partner nonconsensually removing his condom during sex. The bill was delivered to Gov. Jay Inslee on Wednesday.

As The Stranger first reported in January, the bill broadly defines stealthing as taking off or tampering with any prophylactic device someone has agreed to wear or use during sex, including cervical caps, dental dams, the sponge and so on. When it comes to condoms, lying about using one or watching it slip off and doing nothing could be considered stealthing, too. The bill does not include forms of birth control because they are not physical barriers.

To punish abusers, the bill will add a new chapter to the Revised Code of Washington outlining new civil penalties for the act. Victims will be able to sue for damages of up to $5,000 per offense and have their attorney’s fees covered.

Stealthing, which is a form of sexual assault, wasn’t legal in Washington before Berry introduced her bill. But she hopes the legislation will help address the realities of underreporting, poor-quality police investigations, and prosecutors who won’t file charges even for cases with solid evidence, which can be hard to come by in stealthing cases unless a victim contracted a sexually transmitted infection, became pregnant, or has text messages from an abuser admitting to the crime.

Advocates with the Sexual Violence Law Center in Seattle who spoke to The Stranger in January said current law left survivors with few workable legal remedies within the criminal justice system. 

They explained that victims were much more likely to find justice in civil court, where the burden of proof–offering the more persuasive evidence to a jury–is lower than proving a crime beyond a reasonable doubt. 

The point of the bill is not to put more people in jail but to offer practical recourse to survivors. Additionally, victims could sue under a pseudonym and require abusers to attend counseling sessions they’d be financially responsible for.

HB 1958 passed the Senate (43-6) with stronger bipartisan support than in the House (64-33). All amendments introduced by Republicans to water down the language failed, including one that would have required someone to remove the sexual barrier intentionally, and not just nonconsensually, for a plaintiff to bring a case to court. Another would have added hormonal birth control and IUDs to the definition of stealthing.

“We kept hearing from advocates that was an unacceptable way of potentially criminalizing the survivor–by allowing someone to say ‘Well, I wasn’t wearing a condom, but you weren’t on birth control,’ even if the agreement was to wear a condom,” Berry said during a Thursday phone call. “We were able to combat those initiatives, but it didn’t prevent some really lively floor debate.”

From the House floor on February 7, Rep. Cyndy Jacobsen (R-Puyallup) said the bill would create a “morass of she said/ he said” that couldn’t be easily proven in court. Jacobsen did not think the standard of proof was clear enough.

Under Washington law, even a he said/she said/they said/etc. story is considered a valid form of testimony. As Sexual Violence Law Center attorney Elizabeth Hendren said at a January hearing, “credibility is key,” especially in cases with little physical evidence.

Rep. Michelle Caldier (R-Gig Harbor) suggested that the bill did not support men and women equally because it did not include birth control as a prophylactic device that women could potentially lie to their partners about. Berry shot back that broadening the definition beyond a physical barrier device would have unintended consequences that would be weaponized against survivors.

Washington isn’t the first state to put a stealthing policy on the books. Lawmakers in other states first started pushing stealthing bills after a 2017 paper from attorney Alexandra Brodsky sparked cultural debate. In 2021, California became the first state to amend its definition of sexual battery to include stealthing. Maine enacted a law similar to Washington’s last year. Some states, like New York and New Jersey, have moved to criminalize the act instead.

While the term is new, the phenomenon is not, but researchers have only recently begun studying stealthing in recent years.

A 2024 scoping review of the field from Arizona University sexual violence researcher Kelly Cue Davis found that only 27 studies explicitly collected data on stealthing. One of those studies, conducted in Seattle by Davis herself, found that the 10% of male focus group participants who admitted to stealthing women did it an average of three times. Another paper from Davis found that 12% of women surveyed said they’d been stealthed. Still, there's a lot we haven’t studied, including men who’ve stealthed other men.