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From Stealthing to the “Pill Lie”: Deceptive Practices Concerning Reproductive and Protective Measures in Sexual Encounters
Nora Scheidegger*
I. Introduction
Deceptive practices related to protective and contraceptive measures in sexual encounters and their assessment under criminal law have increasingly attracted public and academic attention. One of the most discussed practices in this context is the so-called stealthing, defined as the non-consensual removal of a condom before or during sexual intercourse.[1] Switzerland’s courts were among the first to address stealthing under criminal law,[2] with the Swiss Federal Supreme Court ruling in 2022 that non-consensual condom removal can constitute a “sexual act against the victim’s will” under the revised rape statutes.[3] In Swiss scholarly and public debates, the classification of stealthing as a sexual offense is largely uncontested.[4] But whenever stealthing is discussed, the debate often turns to cases where a female partner misrepresents her use of hormonal contraception—a practice commonly referred to in German as the “Pillenlüge” (literally, the “pill lie”)—and whether such conduct should also be subject to criminal liability.[5] While the “pill lie” is not truly the “opposite-gender counterpart” to stealthing,[6] it intuitively occupies a similar conceptual space for many, as both involve deception concerning contraceptive or protective measures during sexual encounters. The Swiss Federal Supreme Court has clarified, however, that the “pill lie,” like other false representations concerning preconditions of the sexual act or personal attributes of a partner—such as marital status or religious background—does not fall within the scope of sexual offenses law.[7] Similarly, under English law, practices like stealthing and “non-consensual ejaculation” are treated as sexual offenses,[8] whereas misrepresentations regarding fertility are not considered to vitiate consent and thus fall outside the scope of criminal law.[9] This apparent discrepancy raises the question of whether the law’s differing treatment of deceptive conduct[10] related to contraceptive or protective measures is defensible, or whether all such deceptions ought to be treated uniformly under criminal law?[11] This article uses this question as an entry point to think about the broader challenges in criminalizing[12] deceptive conduct in intimate contexts.
II. Autonomy, Consent, and Deception: the “Traditional” Approach
Consent lies at the heart of modern(!) sexual offense laws, serving as the core mechanism or “vehicle”[13] through which the law recognizes and protects sexual autonomy. For consent to be both morally and legally transformative,[14] it must be freely given, (relatively) informed and provided by a competent individual.[15] Accordingly, a long-standing legal maxim holds that fraud can vitiate consent: if consent is procured through deception, its validity is called into question—a principle that should also apply to sexual offenses.[16] Historically, however, the law has taken a rather permissive approach towards deception in sexual encounters.[17] Liability has generally been limited to deceptions concerning the essential nature of the sexual act itself, or fraud in the factum (with the notable exception of cases involving husband impersonation), while other deceptions—such as those involving a partner’s intentions or personal characteristics (often described as fraud in the inducement)—have largely been excluded from criminal sanction.[18] As Kennedy and others observed, the rationale for criminalizing only those specific instances of deceptive behavior was historically tied to protecting the institution of marriage, rather than safeguarding sexual autonomy.[19] From a modern perspective, where sexual autonomy is the guiding principle of sexual offense law, the exclusion of deceptions relating to inducements is “hard to justify.”[20]
Nonetheless, there are compelling reasons to maintain the traditional distinction between these two forms of deception. As I have argued elsewhere, sexual acts procured through “fraud in the factum” should be understood not merely as a matter of defective or invalid consent but as acts occurring in the complete absence of consent.[21] The paradigmatic case of a gynecologist who inserted his penis instead of the agreed-upon medical instrument[22] is often cited as a compelling example of this perspective: there was simply no consent to the sexual act that took place; the penile penetration fell entirely outside the scope of the patients consent. In such cases, the victim is deprived of the fundamental right to decide whether to engage in a specific sexual act—a right lying at the very heart of sexual autonomy.[23] Preserving the conceptual distinction between “no consent at all” and “invalid consent,” and treating “fraud in the factum” cases as paradigmatic instances of non-consent, maintains conceptual clarity[24] by marking out those situations where sexual agency is entirely absent, while allowing for a more nuanced and sensitive debate as to whether and when inducement-type deceptions should also be regarded as vitiating consent and thus worthy of punishment. I will return to that debate later; for now, however, I would like to defend the view that certain deceptive behaviors related to reproductive or protective measures should be understood as instances of total absence of consent. Stealthing serves as a paradigmatic example and as my starting point.
III. Different Acts, Separate Consent
A. Distinguishing Between Different Acts
The view that “stealthing” constitutes a case of no consent at all rests on the premise that sexual intercourse with a condom and intercourse without one are fundamentally different acts, each requiring separate consent.[25] This position has been upheld by the highest courts in Germany and Switzerland,[26] but it remains controversial,[27] as it raises the fundamental question about how we categorize and distinguish sexual acts. Some cases seem to be clear-cut: anal sex and vaginal sex are typically considered separate acts, as is genital touching compared to kissing. However, other situations are less straightforward. For instance, does ejaculation require separate consent? Does consenting to vaginal intercourse imply consent to the use of sex toys or other objects? And in the case of stealthing, should intercourse without a condom be treated as a different act from intercourse with a condom?
One intuitive way to classify these sexual acts as distinct is by focusing on their differing health and reproductive consequences: acts like ejaculation and unprotected intercourse carry risks of pregnancy and sexually transmitted infections (STIs) that “coitus interruptus” (withdrawal method) and protected sex do not—at least not to the same extent.[28] By this reasoning, intercourse involving hormonal contraception or an intrauterine device (IUD) could also be seen as a different sexual act from intercourse without such protections. However, this approach has notable flaws.[29] First, the risks of pregnancy and STIs may be irrelevant or absent in cases involving same-sex partners, sterilized individuals, menopausal partners, or those demonstrably free of infections. Second, some individuals insist on condom use or the withdrawal method not due to health or reproductive concerns but for reasons like personal boundaries regarding bodily fluids, religious or cultural beliefs, intimacy preferences, or simply the principle of controlling what enters their body. Most importantly, grounding the differentiation of sexual acts on potential physical consequences such as pregnancy or disease is conceptually problematic within a legal framework centered on sexual autonomy. Sexual offense law aims to protect an individual’s authority to define the terms of their sexual engagement, rather than preventing physical or reproductive harm. As Katsampes argues in the context of stealthing, focusing solely on physical consequences and risks “suggests that the nonphysical harms arising from a deprivation of the victim’s choice may not, on their own, merit punishment.”[30] We don’t, after all, consider anal and vaginal intercourse as different acts because only vaginal intercourse carries pregnancy risk; that risk may be morally and legally significant, but is not what fundamentally distinguishes the acts. To ground act differentiation in reproductive consequences risks a regression to a pre-autonomy framework in which the normative significance of sexual activity was derived from its procreative potential rather than respect for individual autonomy.
If relying on potential physical harm like pregnancy or infection is inadequate or inappropriate, then the differentiation of sexual acts must be based on another criterion. One alternative is to consider social conventions:sexual acts can be distinguished according to how they are commonly understood, categorized, or labeled within particular cultural or legal contexts.[31] For example, the practice of treating certain sexual behaviors—such as the location of ejaculation or the use of protection during intercourse—as requiring separate negotiation occurs across different contexts, from sex work to intimate partnerships.[32] This widespread practice suggests that individuals perceive and experience these behaviors as distinct acts deserving individual consent. While I would like to avoid pure conventionalism, it is worth acknowledging that social practices may sometimes track morally and legally meaningful distinctions.
Another possible criterion is to base the differentiation of sexual acts on an “objective” or “anatomical” description of the relevant sexual acts. However, this approach raises challenging questions: How detailed should the descriptions be?[33] And whose perspective should be prioritized—the perpetrator’s, the victim’s, or both? Depending on the chosen level of detail and perspective, two opposite risks arise: On one hand, the approach may overgeneralize by grouping genuinely distinct acts into a single category—for example, treating all penile penetration as identical regardless of which orifice is involved. On the other hand, it may over-particularize by endlessly subdividing acts based on minor physical differences—for instance, treating penetration with different condom brands as distinct acts. A more nuanced perspective recognizes that sexual acts generally involve physical contact between two (or more) individuals.[34] To determine whether two instances of sexual contact constitute the same or different acts, the focus should be on what physically occurs at the point of contact, evaluated from the perspectives of both parties.As Clement formulates it, we should ask: “What does D touch C with, and which part of C is touched?” and whether C consented to that contact.[35] From this perspective, sexual intercourse with and without a condom constitute distinct acts because they involve fundamentally different configurations of bodily contact.[36] The presence of the condom functions as a mechanical barrier that shapes the tactile and bodily experience of the act; and removing the condom changes what physically enters the body of the other person. During protected intercourse, a synthetic barrier contacts the internal vaginal or anal tissues throughout the encounter. In contrast, during unprotected intercourse, penile skin and potentially seminal fluid make direct contact with those tissues. These differences are not mere variations of an act-type (penetration), but constitute discrete acts individuated by their differing physical compositions—that is, by what actually crosses the bodily threshold into internal corporeal space.[37]
B. Borderline Cases
While the “typical” case of stealthing can be readily classified as sexual activity without consent, certain borderline scenarios present greater complexity and highlight the conceptual difficulty in determining the appropriate granularity for defining (different) sexual acts. These include situations involving an expired condom[38] (which carries an increased risk of tearing) or a condom that is too small, worn with the expectation that it will rupture, ultimately resulting in unprotected intercourse. In these instances, it may be argued that from the moment the protective barrier fails, and unprotected intercourse ensues (accompanied by the requisite mens rea), the situation becomes functionally equivalent to stealthing—the victim consented to protected sex but is now experiencing unprotected sex. Cases involving a secretly perforated condom are a bit more difficult to assess:[39] although the barrier is compromised, it remains largely intact, still providing partial protection from skin-to-skin-contact and the exchange of fluids. One could argue that this scenario cannot be equated with the complete removal of the protective barrier,[40] and might be more appropriately considered within a framework of reproductive autonomy (see Part V below).
By contrast, ejaculating inside a partner’s vagina, anus, or mouth when withdrawal (coitus interruptus) has been agreed upon may reasonably be understood as a non-consensual additional sexual act. As Cusack observes, ejaculation is neither intrinsic to unprotected sex nor to penetration; rather, it constitutes an additional, independent sexual act requiring separate consent.[41] Unlike the (involuntary) release of pre-ejaculatory fluid, ejaculation results from the deliberate continuation of sexual stimulation to climax. For the recipient, it represents a separate, discernible event: it introduces bodily material that would not otherwise be present, marking a clear boundary that has social, psychological, and physical significance. This distinction is also socially recognized: sexual partners often negotiate whether ejaculation occurs internally, externally, or on specific body parts—sometimes irrespective of fertility or health considerations. These practices underscore the perceived separateness of ejaculation as a sexual act and its associations with intimacy, trust, and responsibility. The view advanced here is supported by the fact that most countries treat non-consensual penetration itself and independent of ejaculation as rape, which further supports the view that ejaculation constitutes an additional act rather than merely being part of penetration.[42]
The analysis becomes more complex when a woman consents to both penetration and internal ejaculation under the mistaken belief that the man has undergone a vasectomy.[43] Physically, the acts are identical: unprotected penile penetration followed by ejaculation. The difference lies in the imperceptible biological composition of the semen—fertile semen contains living sperm capable of causing pregnancy, whereas semen from a vasectomized man does not. One might argue that the presence of live sperm transforms the act qualitatively, constituting a distinct sexual act. However, accepting microscopic biological differences in bodily fluids as defining separate sexual acts leads to impractical consequences. Natural variations in sperm count, effects of medication, or daily seminal changes could theoretically classify every ejaculation as a different act. This would result in an excessively fine-grained taxonomy, based on imperceptible biological states.[44] If viable sperm presence individuated sexual acts, vasectomy status would create distinct acts even in contexts where pregnancy is impossible—an intuitively problematic conclusion. What makes fertility status relevant to consent is not the biological composition per se, but the reproductive risk it entails. Therefore, deception about fertility—whether concerning vasectomy, contraceptive use, or reproductive capacity—does not transform the physical act itself, in the sense that the victim consented to one act but experienced another. Rather, the deception might undermine the validity of consent, insofar as the victim consented to the sexual act under false information about material conditions, specifically the reproductive risks involved.
IV. The Substance of Deceptions
The argument advanced here is that certain cases of deceptive behavior (such as stealthing or ejaculating internally when withdrawal was agreed upon) can be conceptualized as instances of absence of consent through act-substitution and thus fall within the same conceptual space as other “typical” non-consensual sexual acts that clearly merit criminal punishment. Other instances of deception, however, cannot be resolved through this framework. Deceptions concerning fertility status, for example, do not involve the substitution of the sexual act itself but rather the misrepresentation about facts that influence a partner’s decision to consent. These scenarios raise the contested question of how the law should respond to deceptive conduct that does not alter the physical nature of the act, yet undermines the authenticity of consent by distorting the informational basis on which it is given. The fundamental challenge here is this: if sexual autonomy is the sole organizing principle for sexual offenses law, any deception about information that would have changed the victim’s decision seemingly violates that autonomy. Put differently, the principle of sexual autonomy alone cannot provide substantive criteria for distinguishing which deceptions should vitiate consent and which should not.[45] Under a “pure” autonomy-based framework, we would have to accept the “unattractive”[46] proposal that deception as to any information that had a bearing on a person’s decision to have sex will invalidate consent, no matter how trivial or peripheral the information.[47] In such a regime, the only limitation on criminal liability would arise from the perpetrator’s mens rea.
Yet, most commentators agree that not all deceptive sexual conduct should be criminalized, and that the content of the deception—what is being lied about—matters in determining which cases warrant criminal sanction. The challenge, then, lies in identifying a principled and non-arbitrary basis for drawing lines to restrict the categories of deceptive sex that are deemed worthy of criminalization. Some seek to resolve this problem by explicitly enumerating a “list” of deceptions that should vitiate consent[48] or, conversely, by excluding seemingly “trivial” deceptions that should not.[49] As Clement Tolley observes, “objective” approaches that recognize only certain deceptions as “sufficiently serious” are “inescapably moralised, reflecting matters that most people regard as important . . . rather than what was important to the individual whose consent is in question.”[50] This exposes a fundamental tension: any objective standard risks imposing conventional moral judgments about which preferences deserve legal protection, potentially undermining the autonomy principle underlying sexual offenses law.
Chloë Kennedy offers a new approach to the line-drawing problem by rooting her theory in the concept of identity nonrecognition.[51] She argues that (some) deceptive sex is wrongful because it fails to respect the way individuals construct their identities through sexual relationships.[52] According to her, express conditions must be respected regardless of their content, since deception about an issue someone has explicitly identified as important is a “clear example of identity nonrecognition.”[53] Although I am somewhat skeptical of the view that express conditions must be respected regardless of their content, I will leave this critique aside for the purposes of this discussion.[54] Returning to Kennedy’s account, she suggests that beyond those cases of “express conditions,” only certain types of information are central to self-construction and thus worthy of a legal response, particularly those closely connected to sex itself and its direct consequences in intimate relationships.[55] In addition to deceptions concerning the nature or purpose of the sexual act and wholesale identity deception, Kennedy includes deceptions about pregnancy and disease as qualifying instances of identity nonrecognition, “because of the way becoming a parent, undergoing a termination and contracting certain chronic, if treatable, diseases are known to be connected to self-construction.”[56] Conversely, deceptions as to social status, nationality, religion, or infidelity, should not “count,” because they are not “sufficiently connected to the identity construction, via sex.”[57] While Kennedy’s approach is intuitively intriguing, I agree with Sharpe that Kennedy’s account does not fully clarify why identity concerns should be prioritized over other relevant factors in determining when deception invalidates consent.[58] Independently of this debate, however, I find a particular aspect of Kennedy’s approach highly persuasive. She acknowledges that even in cases of express conditions, legal responses to certain types of sexual deception, such as those involving reproductive or disease status, may be inappropriate due to competing privacy concerns and public health goals.[59] In my view, this is the key to addressing the line‑drawing problem.
Sexual autonomy (or identity recognition) is not the only relevant interest or (human) right at stake in cases of sexual deception. The deceiving party, too, might have legitimate privacy interests that must be balanced against the other party’s autonomy rights.[60] Criminal law cannot ignore that mandating truthfulness about certain intimate aspects of one’s identity, medical history, or fertility status raises profound privacy concerns. Consider the types of information that might influence someone’s sexual decision-making: HIV status, transgender identity, marital status, criminal history, fertility status, religious background, political beliefs, past sexual experiences, and more. While all of these might matter deeply to a potential sexual partner, some of this information is deeply private, and individuals have legitimate interests in controlling when, how, and to whom they reveal it.[61] It is beyond the scope of this essay to evaluate how the competing rights and interests at stake should be balanced across all of these scenarios—maybe a detailed balancing for different privacy constellations would be necessary, since the weight of privacy interests and autonomy interests will vary significantly depending on what’s being concealed.[62]
In the context of deceptions as to fertility status—and acknowledging that both fertility and infertility can be decisive factors in sexual decision‑making—privacy concerns offer compelling reasons for resisting the criminalization of such conduct as a sexual offense. Birth control methods used by women in particular, often involve very private and ongoing reproductive healthcare decisions. Requiring truthfulness about (ongoing) contraceptive use would not only render every act of intercourse during a “period of deception” a potential sexual offense, but would also risk facilitating reproductive coercion.[63] Reproductive coercion refers to behaviors intended to control another person’s reproductive autonomy, such as sabotaging contraception or coercing pregnancy—a phenomenon that disproportionately affects women, despite the inaccurate cultural narrative that tricking a partner into pregnancy is an act dominated by women.[64] If women could face criminal liability for misrepresenting contraceptive use, their partners might exploit this to monitor or influence their reproductive choices, effectively transforming criminal law into a tool for policing women’s reproductive autonomy.[65]
On the other hand, criminalizing misrepresentations about vasectomy status might not raise the exact same concerns. There may be legitimate privacy interests in choosing not to disclose infertility (whether due to vasectomy or natural causes), since such information might be experienced as deeply private, shameful, or emasculating within certain contexts.[66] However, it is difficult to identify comparable privacy concerns when an individual falsely claims to have undergone a vasectomy without having done so. For now, I refrain from taking a definitive stance on whether privacy interests regarding fertility status or contraceptive use invariably suffice to exclude the deceiving party from liability for a sexual offense. However, taking into account the privacy dimension, and especially the risk of abuse for reproductive control, I am inclined to advocate that such misrepresentations be exempted from criminal liability as sexual offenses—and to do so through explicit legislative clarification rather than by leaving the matter to prosecutorial discretion.
V. A Conclusion: From Sexual Autonomy to Reproductive Autonomy
Regardless of one’s position on whether such conduct should fall within the ambit of sexual offenses law, deception about fertility or contraception should also be examined through the lens of reproductive autonomy.[67] Whether or not these cases are ultimately classified as sexual offenses should not preclude such an analysis. In fact, analyzing such cases through the lens of reproductive autonomy may reveal wrongs (and harms) that the sexual autonomy framework alone cannot fully capture.[68] I even suggest that the core wrong in cases involving deception about vasectomy or contraceptive use lies less in the violation of sexual autonomy and more fundamentally in the infringement of theright to make informed decisions about the potential reproductive consequences of sexual activity.[69] This right should encompass both the right not to be forced or tricked into impregnating another person (as in cases of “leg-locking” or contraceptive deception by women (the “pill lie”) and the right not to be tricked or forced into becoming pregnant (as in cases of vasectomy lies).
Criminal law systems, including Switzerland’s, seem to pay insufficient attention to violations of reproductive autonomy as a distinct category of wrong.This neglect is evident in the limited recognition and prosecution of reproductive autonomy violations beyond sexual offense law, despite their profound effects on bodily integrity, dignity, and freedom to make personal and life-altering decisions.[70] The right to make informed decisions about whether and when to become a parent is conceptually separate from, though related to, sexual autonomy. Unlike sexual autonomy, which receives robust protection through rape and sexual assault statutes, reproductive autonomy remains largely un- or under-protected as an independent legal interest. Instead, reproductive interferences are typically subsumed under broader offenses such as bodily harm, coercion, or sexual assault—categories that fail to capture the specific nature of the wrong of violations of reproductive autonomy.[71]
Recognizing reproductive autonomy as a freestanding legal interest worthy of criminal protection offers several advantages. First, it acknowledges the reality that reproductive decision-making involves profound questions about bodily integrity, life planning, and personal identity that extend far beyond a single sexual encounter. A legal framework specifically protecting reproductive self-determination could better capture the dual wrongs suffered by a woman who becomes pregnant as a result of rape. It would recognize that in such cases, two separate wrongs occur: a violation of sexual autonomy and a violation of reproductive autonomy.[72] Similarly, it could address cases where the violation is caused by a third party who tampers with contraceptives, while the sexual act itself involves two consenting partners, for example when a mother-in-law secretly tampers with her daughter-in-law’s birth control pills in order to get her pregnant.[73] Second, a legal framework specifically for reproductive autonomy would create (more) space to address the gendered dimensions of violations of reproductive autonomy, recognizing that while reproductive autonomy belongs to all persons, its infringement disproportionately impacts women and persons capable of pregnancy.[74] Only women and people with uteruses can become pregnant, and they therefore bear the direct bodily consequences: the physical risks of pregnancy, the health impacts of abortion or emergency contraception, the bodily changes of gestation and childbirth, and the associated medical risk. However, it is important not to overlook the financial, legal and psychological burdens experienced by men facing unwanted parenthood.[75]
This article does not aim to provide a fully developed legal proposal for a reproductive autonomy offense. Rather, the concept is outlined here to highlight its potential advantages and to encourage further consideration.[76] For jurisdictions reluctant to broadly criminalize sex-by-deception (such as Switzerland), the reproductive autonomy framework offers a promising alternative path forward. Rather than “stretching” sexual offense law to cover all forms of sexual deception—with the risk of over-criminalization, conceptual confusion, and inadequate attention to privacy interests—the law can recognize that some deceptive conduct in sexual contexts primarily violates reproductive rather than sexual autonomy. Such an offense must, of course, be carefully drafted and give due weight to competing privacy interests. However, the way these interests are balanced could differ in the context of reproductive autonomy, especially if the legal provision is narrowly tailored to cover only intentional manipulation of reproductive outcomes that result in specific harm.
* Postdoc, Max Planck Institute for the Study of Crime, Security and Law, Germany; Lecturer at University of Lucerne, Switzerland.
[1] See, e.g., Alexandra Brodsky, “Rape-Adjacent”: Imagining Legal Responses to Nonconsensual Condom Removal,32 Colum. J. Gender & L. 183 (2017); Lauren Harter, Statutory Solutions for Stealthing: How States Should Amend Their Laws to Address Nonconsensual Condom Removal, 59 Ga. L. Rev. 291 (2024); Brianna Chesser & April Zahra, Stealthing: A Criminal Offence?, 31 Current Issues Crim. Just. 217 (2019). The term “stealthing” can be criticized for sounding like a casual dating trend akin to “ghosting,” which risks trivializing this serious violation of sexual autonomy. Consequently, some legal scholars and advocates prefer using the term “non-consensual condom removal (NCCR)” to better reflect the gravity of the conduct and avoid minimizing language. See, e.g., Esperanza Gómez-Durán & Carles Martin-Fumadó, Nonconsensual Condom-Use Deception: An Empirically Based Conceptualization of Stealthing, 25 Trauma Violence & Abuse 87 (2024).
[2] See, e.g., Kantonsgericht Waadt [Vaud Cantonal Court] May 8, 2017, PE15.012315-LAE/PBR E. 4.2.1. (Switz.).
[3] Bundesgericht [BGer] [Federal Supreme Court] May 11, 2022, BGE 148 IV 329 (Switz.); Bundesgerichtshof [BGH] [Federal Court of Justice] Dec. 13, 2022, 3 StR 372/22 (Ger.).
[4] Mohamad El-Ghazi, Die strafrechtliche Bewertung des sogenannten Stealthings, 115 Schweizerische Juristen-Zeitung 675 (2019); Nora Scheidegger, Täuschungen im Sexualbereich, 5/2025 forumpoenale 345; Gunhild Godenzi, Article 189, in Schweizerisches Strafgesetzbuch—Handkommentar (Wolfgang Wohlers et al. eds., 2024).
[5] See, e.g., Matthias Jenal, Stealthing durch abredewidriges Absetzen der Pille?, Konsequenzen einer Stealthing-Strafbarkeit, Jusletter (Feb. 3, 2025) (https://perma.cc/LZ5C-Y3WP).
[6] The “male version” of the “pill lie” would be lying about being fertile (for example by falsely claiming to have undergone a vasectomy).
[7] Bundesgericht [BGer] [Federal Supreme Court] May 11, 2022, BGE 148 IV 329 (Switz.).
[8] Assange v. Swedish Prosecution Authority, [2011] EWHC 2849 (UK); R (on the application of F) v. DPP [2013] EWHC 945 (UK).
[9] R v. Lawrance, [2020] EWCA Crim 971 (U.K.); see Kyle L. Murray & Tara Beattie, Conditional Consent and Sexual Offences: Revisiting the Sexual Offences Act 2003 after Lawrance, 7 Crim. L. Rev. 556 (2021).
[10] The distinction between active deception and non-disclosure is not the main focus of this paper but, as I have argued elsewhere, there is good reason to limit criminal liability to cases involving deception, see Nora Scheidegger, Balancing Sexual Autonomy, Responsibility, and the Rights to Privacy: Principles for Criminalizing Sex by Deception, 22 Ger. L.J. 769 (2021); see also Rachel Clement Tolley, P9. Deception, Mistake and Difficult Decisions, in Criminal Law Reform Now, Reforming the Relationship between Sexual Consent, Deception and Mistake, Consultation 90, 93-95 (Criminal Law Reform Now Network ed., 2021) (https://perma.cc/M2VE-KMCC).
[11] See also Barbara Wiedmer, Manipulation des zum Geschlechtsverkehr verwendeten Kondoms als sexueller Übergriff—Anmerkung zu AG Bielefeld, Urt. v. 2.5.2022—10 Ls-566 Js 962/21-476/21, 5 KriPoZ 101 (2025) (critiquing the current legal situation in Germany, where deception about contraception under male responsibility—such as condom use or withdrawal—can more easily result in criminal liability than deception about female-controlled methods like taking the pill or using an intrauterine device (IUD)).
[12] Whether sex-by-deception should be criminalized as rape or considered a lesser or distinct offense remains an open question. See, e.g., Amit Pundik, Coercion and Deception in Sexual Relations, 28 Can. J.L. & Juris. 97 (2015); Matthew Gibson, Deceptive Sexual Relations: A Theory of Criminal Liability, 40 Oxford J. Legal Stud.82 (2020).
[13] Luis E. Chiesa, Solving the Riddle of Rape by Deception, 35 Yale L. & Pol’y Rev. 407, 437 (2017).
[14] Heidi M. Hurd, The Moral Magic of Consent, 2 Legal Theory 121 (1996) (arguing that consent has the “moral magic” to render impermissible conduct permissible).
[15] Alan Wertheimer, Consent to Sexual Relations (2003); Peter Westen, The Logic of Consent: The Diversity and Deceptiveness of Consent as a Defense to Criminal Conduct 10 (2004); Joel Feinberg, “Victims” Excuses: The Case of Fraudulently Procured Consent, 96 Ethics 330 (1986).
[16] Patricia J. Falk, Rape by Fraud and Rape by Coercion, 64 Brook. L. Rev. 39, 154 (1998).
[17] Ben A. McJunkin, Deconstructing Rape by Fraud, 28 Colum. J. Gender & L. 1 (2014).
[18] See Rollin M. Perkins & Ronald N. Boyce, Criminal Law 215 (3d ed. 1982).
[19] Chloë Kennedy, Inducing Intimacy: Deception, Consent and the Law 169 (2024); see also Anne M. Coughlin, Sex and Guilt, 84 Va. L. Rev. 1, 31-32 (1998) (stating that the official purpose of rape law did not include the protection of sexual autonomy).
[20] Kennedy, supra note 19, at 212-13; Jed Rubenfeld, The Riddle of Rape by Deception and the Myth of Sexual Autonomy, 122 Yale L.J. 1372, 1402 (2013) (“[O]ur rape-by-deception doctrine . . . no longer makes sense.”)
[21] Scheidegger, supra note 10, at 777; see also Rollin M. Perkins, Criminal Law 856 (2d ed. 1969) (“[W]hat happened is not that for which consent was given.”); Hurd, supra note 14, at 127 (noting that “there may be consent to an act, but there may be no consent to the act”); see also Rachel Clement, Deception, Mistake, Privacy and Consent: A Conceptual Framework for Resolving the “Line-drawing” Problem in Sex-by-Deception and Mistaken Sex 204-23 (D.Phil. thesis, Univ. of Oxford 2018).
[22] People v. Minkowski, 204 Cal. App. 2d 832 (1962).
[23] Joan McGregor, Is It Rape? On Acquaintance Rape and Taking Women’s Consent Seriously 106 (2005).
[24] The distinction also offers a practical advantage for jurisdictions that have not (yet) adopted an affirmative-consent standard in rape law and where the law has traditionally been reluctant to recognize sex-by-deception as criminal offense. Cases where the sexual act itself was misrepresented can be treated as acts done “against the will” under a “no-means-no”-model because the victim not only did not consent to the act that occurred but often implicitly objected to the actual activity performed. Additionally, framing cases like stealthing in terms of “no consent at all” rather than “invalid consent” allows the courts to address them without immediately engaging in the more complex and ongoing debate over whether deception concerning motives or personal characteristics should vitiate consent.
[25] See Brodsky, supra note 1, at 190-91.
[26] Bundesgericht [BGer] [Federal Supreme Court] May 11, 2022, BGE 148 IV 329 (Switz.); Bundesgerichtshof [BGH] [Federal Court of Justice] Dec. 13, 2022, 3 StR 372/22 (Ger.).
[27] See, e.g., Kennedy, supra note 19, at 191 (suggesting that a deception-based analysis may capture “something significant about the wrong of stealthing”).
[28] See, e.g., Bundesgerichtshof [BGH] [Federal Court of Justice] Dec. 13, 2022, 3 StR 372/22 (Ger.) (grounding the distinct character of the sexual act primarily on the fact that condoms serve the purpose of preventing pregnancy and infections).
[29] See also Brodsky, supra note 1, at 193 (warning against viewing the greater risks associated with unprotected sex as transforming the contact into a new type of act).
[30] Athena Katsampes, A Rape by Any Other Name? The Problem of Defining Acts of Protection Deception and the University as a Solution, 23 Va. J. Soc. Pol’y & L. 157, 162 (2017).
[31] Emily C.R. Tilton & Jonathan Jenkins Ichikawa, Not What I Agreed To: Content and Consent, 132 Ethics 127 (2021), do not define sexual acts based on social conventions but rather use these conventions to specify what content is attributed to the act of consenting in particular contexts.
[32] See, e.g., Gillian Abel et al., Voicing Consent: Sex Workers, Sexual Violation and Legal Consciousness in Cross-National Contexts, in Palgrave Advances in Sex Work Studies 53 (Teela Sanders et al. eds., 2025).
[33] See Wertheimer, supra note 15, at 206; Feinberg, supra note 15, at 335.
[34] It is important to note that not all sexual acts occur between two individuals; there are circumstances in which one person (e.g., an adult) induces another person (e.g., a child) to perform sexual acts on themselves.
[35] Clement, supra note 21, at 215.
[36] But see id. at 216-17. Clement agrees that stealthing can constitute rape or sexual assault, but not because protected and unprotected sex are different act-types. She views penetration with and without a condom as physical variations of the same act. Drawing on an analogy to a gloved versus ungloved handshake, Clement asserts that penetration with a condom remains penetration with the penis. However, when a partner explicitly consents only on the condition of condom use, their consent is limited to this specific subtype of penetration, meaning that the removal of the condom amounts to a case of no consent. Clement chooses the anatomical point of contact—the specific body part involved—as the decisive criterion for defining sexual acts. However, this criterion is not necessarily definitive, as the nature of the material involved in contact (condom or skin) could also serve as a relevant point of differentiation. This is true even for handshakes: in many contexts, such as gynecological examinations, police searches, surgical procedures, or forensic investigations, the distinction between gloved and ungloved contact is of paramount importance.
[37] Brodsky, supra note 1, at 190-91; Harter, supra note 1, at 316-17.
[38] Kennedy, supra note 19.
[39] See Mikaela Shapiro, Yes, “Stealthing” Is Sexual Assault… And We Need to Address It, 37 Touro L. Rev. 1643, 1649 (2021) (arguing that tampering with a condom to render it useless should also be considered stealthing).
[40] See also Wiedmer, supra note 11 (critiquing the court’s decision in AG Bielefeld, May 2, 2022, Urteil, BeckRS 2022, 11233 [Ger.], for equating the deliberate perforation of a condom with stealthing).
[41] Carmen M. Cusack, Nonconsensual Insemination: Battery, 3 J.L. & Soc. Deviance 3 (2012).
[42] The separateness of ejaculation as an act is further evidenced by the practice of “leg-locking,” where one partner physically restrains the other to prevent withdrawal, thereby forcing internal ejaculation. This behavior is recognized as a form of sexual coercion or abuse precisely because it overrides the partner’s autonomy regarding whether and where ejaculation occurs. See Alice Giddings, Let’s Call Leg Locking What It Is—Sexual Assault, METRO (May 10, 2024) (https://perma.cc/UR5U-BWFM).
[43] R v. Lawrance, [2020] EWCA Crim 971 (UK).
[44] See also Clement, supra note 21, at 219 (arguing that seropositivity and fertility do not constitute physical variations of the act itself, and consent applies to the physical sexual act rather than to biological variations such as genetic material within bodily fluids).
[45] Kennedy, supra note 19, at 197.
[46] Chloë Kennedy, Criminalising Deceptive Sex: Sex, Identity and Recognition, 41 Legal Stud. 91, 93 (2021).
[47] See Jonathan Herring, Mistaken Sex, 52 Crim. L. Rev. 511 (2005); Omar Madhloom, Deception, Mistake and Non-Disclosure: Challenging the Current Approach to Protecting Sexual Autonomy, 70 N. Ir. Legal Q. 20 (2019).
[48] See, e.g., Tatjana Hörnle, Sexuelle Selbstbestimmung: Bedeutung, Voraussetzungen und kriminalpolitische Forderungen, 127 Zeitschrift für die gesamte Strafrechtswissenschaft 851, 859-60, 880-81 (2015).
[49] See, e.g., Victor Tadros, Beyond the Scope of Consent, 50 Phil. & Pub. Affs. 430, 458 (2022); Scheidegger, supra note 10, at 782-83.
[50] Clement Tolley, supra note 10, at 90.
[51] Kennedy, supra note 46, at 96-103; Kennedy, supra note 19, at 212.
[52] Kennedy, supra note 19, at 216-17. However, according to her view, even express conditions can be “trumped” under certain circumstances.
[53] Id. at 216; see also Joseph Fischel, Screw Consent: A Better Politics of Sexual Justice 97 (2019); Alex Sharpe, Deceptive Sex: Rethinking Consent from the Gender Margins, 88 Mod. L. Rev. 689, 702 (2025) (agreeing but labelling it a “concession,” which she considers “appropriate for both principled and pragmatic reasons”).
[54] Even if the setting of such conditions might be rare in practice (as Sharpe and others suggest), thereby limiting its practical consequences, this approach nonetheless appears too broad, see Andrew Dyer, How Should English Law Deal with Deceptive Sex?, 53 Common L. World Rev. 3, 29 (2023) (“too broad”). The same objections that apply to the indiscriminate criminalization of all deceptions apply equally to express conditions. The relevant question should be: Is this particular deception or boundary violation worthy of criminal punishment? If expressness alone could “elevate” any preference into a legally protected boundary, then criminal liability would at least partly turn on the victim’s communication style. In my opinion, the proper role of express conditions is evidentiary, not substantive. Violating an expressly stated condition is simply a particularly blatant form of deceptive behavior in which proof of mens rea (in most European countries, including Switzerland, sex offenses can only be committed intentionally) should be straightforward. Explicitly stating a condition removes any ambiguity about what was communicated and what the defendant knew.
[55] Kennedy, supra note 19, at 215.
[56] Id. at 216.
[57] Kennedy, supra note 46, at 103.
[58] Sharpe, supra note 53, at 698.
[59] Kennedy, supra note 19, at 217.
[60] See also Scheidegger, supra note 10, at 781; Clement, supra note 21, at 225-83 (arguing to account for the competing rights and interests “that militate against identifying all deceptions and relevant mistakes as consent-invalidating”).
[61] Hugh Lazenby & Iason Gabriel, Permissible Secrets, 68 Phil. Q. 265 (2018).
[62] See Clement, supra note 21, at 244 (using the framework of Article 8 of the ECHR to strike the balance between competing rights and interests in two specific constellations (gender identity/history, and HIV+ and HSV+ status)).
[63] See Leah A. Plunkett, Contraceptive Sabotage, 28 Colum. J. Gender & L. 97, 98 (2014); Elizabeth Miller et al., Pregnancy Coercion, Intimate Partner Violence and Unintended Pregnancy, 81 Contraception 316 (2010); see generally Karen Trister Grace & Jocelyn C. Anderson, Reproductive Coercion: A Systematic Review, 19 Trauma Violence & Abuse 371 (2018).
[64] See Rachel Camp, Coercing Pregnancy, 21 Wm. & Mary J. Women & L. 275, 289 (2015).
[65] See also Clement Tolley, supra note 10, at 96 (mentioning that people might lie about their use of contraception for fear of sexual and physical abuse).
[66] O.D. Joja et al., Psychological Aspects of Male Infertility: An Overview, 187 Procedia—Soc. & Behav. Sci. 359 (2015).
[67] Internationally, reproductive autonomy is recognized as part of reproductive rights in human rights instruments, notably in art. 16(e) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). It includes rights to decide on the number and spacing of children, access to reproductive health information and services, and protection from coercion and discrimination, see generally Hemendra Singh, Legal Frameworks Governing Reproductive Rights and Policies, in Global Perspectives on Reproductive Rights and Policies 209 (Maja Pucelj & Magdalena Matusiak-Frącczak eds., 2025); Erin Nelson, Law, Policy and Reproductive Autonomy (2014); Ulrike Busch, Sexuelle und reproduktive Gesundheit und Rechte: Nationale und internationale Perspektiven 14-15 (2010).
[68] See Hayden Golemon, Reproductive Crimes, 113 J. Crim. L. & Criminology (Online) 87, 96 (2023) (noting that “the absence of reproductive rights in the consideration of sexual assault leads to unjust outcomes by failing to account for the differences between non-procreative rapes and potentially procreative rapes”).
[69] See also Daniela Schaffner, Der Zusammenhang zwischen dem Strafrecht und den Grund- und Menschenrechten, 3 ius.full 112, 122 (2023).
[70] See Kennedy, supra note 46, at 102 (arguing that both becoming a parent and undergoing an abortion entail a fundamental shift in identity, underscoring the deep and lasting significance these experiences hold for individuals).
[71] On the legal landscape in the U.S., see Golemon, supra note 68, at 94-96.
[72] Id. at 107 (“A sexual assault that violates a reproductive right . . . should be treated as two separate crimes: a sexual assault and a reproductive assault . . . .”).
[73] In 2019, a widely discussed Reddit post featured a woman who discovered that her mother-in-law had been tampering with her and her husband’s birth control, resulting in an unplanned pregnancy. (http://archive.today/z5dGA).
[74] Laura Purdy, Women’s Reproductive Autonomy: Medicalization and Beyond, 32 J. Med. Ethics 287 (2006) (stating that the disparity arises because reproductive processes occur in women’s bodies, and women are typically expected to undertake the primary responsibilities of child-rearing).
[75] See, e.g., Imogene Smith et al., Associations Between Unintended Fatherhood and Paternal Mental Health Problems: A Systematic Review and Meta-Analysis, 339 J. Affective Disorders 22 (2023).
[76] See Golemon, supra note 68, at 107 (presenting a more detailed concept).
Suggested Citation: Nora Scheidegger, From Stealthing to the “Pill Lie”: Deceptive Practices Concerning Reproductive and Protective Measures in Sexual Encounters, 2 Mod. Crim. L. Rev. 193 (2026).