First conviction in Spain for sexual assault after removing a condom without warning in a consensual relationship

The provincial court of Barcelona has sentenced a man for removing a condom during intercourse without telling the woman, who spent months worried about the possibility of contracting a sexually transmitted disease (STD). The couple met on a dating app. They arranged to meet, went for a walk and ended up at her house to have consensual sex, but with a condom.

The sentence, handed down on 21 October, is pioneering in Spain because it follows the new doctrine established by the supreme court in May 2024, which establishes that removing a condom during consensual intercourse without the agreement of the other person, a practice known as 'stealthing', constitutes a crime of sexual assault and is punishable by one to four years in prison. There were previous convictions for similar acts in Spain, although never for a crime of sexual assault.

The case in question occurred in Barcelona on 13 November 2022. The defendant, who had no criminal record, met the woman through a dating app. They arranged to meet at six o'clock in the evening and arrived at her house at around seven o'clock to have sex. The court considered it proven that the woman gave him a condom to put on, but that he removed it in the middle of the sexual intercourse and continued with the penetration "without her authorisation or realising it". She only realised when the intercourse was over, and she reproached him for it.

The sentence, to which SUR has had access, and which is not yet final, weighs up the credibility of the testimonies of the victim and the accused, an exercise that becomes even more complex - the judges stressed - in crimes committed in private and in the total absence of witnesses. The versions are obviously contradictory, but the court concluded that it believes her.

The woman testified at the trial that at the moment of initiating intercourse she asked the defendant to use the condom that she herself had provided. He put it on and implied that he would use it during the entire intercourse. According to her version, they only stopped to change position, placing her back to the defendant. When she saw the condom lying on the bed, she asked him why he had taken it off and he replied: "Oh, you didn't know?" He then got dressed and left the flat. For her, this response is "an admission of his responsibility", as at no time did he ask her permission to take it off.

The accused, on the other hand, stated that she asked him if he was wearing a condom and he, who had one, put it on. The defence provided a receipt from a shop near the man's home, although the court considered that this receipt only proved the purchase, but not that he brought it to the date "and even less that he used it during the sexual act". He also stated in court that in all his sexual encounters he habitually uses a condom.

The man's version also differs with regard to intercourse. According to him, they had sex twice. The first time, he said, he ejaculated after 10 minutes and "the condom fell off under its own weight". After a 20-minute break, they resumed intercourse for two minutes. "She held his penis tightly in her hand, insisting he was on top, which he resisted because he was not wearing a condom at the time," the defence claimed.

For the court, the defendant's account is "implausible", especially the part in which he claims that the sexual act lasted two minutes and that he was on top of the victim, "forced and against his will". "What prevented him from moving away? Especially if he always has sex with a condom," the judges asked.

The Barcelona court found no contradictions in the woman's version, nor spurious motives that could result from previous relationships - it was the first time they had met - and that would reveal a component of hatred, resentment, revenge or enmity. For the court, her testimony is corroborated by the feeling of "deception, shame and anxiety" that she stated she suffered. And, above all, "the fear of contracting a sexually transmitted disease", the judges said. Her fear was such that the woman took two tests, one immediately afterwards and another after six months, both of which were negative.

Not surprisingly, the victim underwent "rigid medical treatment" during the following six months, during which she took antivirals against HSV, "which delayed the fertility treatment she had planned to undergo". The court translated this non-pecuniary damage into a compensation of 1,000 euros.

The provincial court sentenced the defendant to one year in prison, as opposed to the three years requested by the prosecution, and imposed a restraining order requiring him to stay at least 500 metres away from the victim for a period of six years.