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Betrayal of Trust: An Analysis of Agenda-Setting for Condom Stealthing in California and

Wisconsin

Hersheeta Suri
Pomona College Politics Department Senior Thesis
December 4, 2020
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Introduction
At my college’s dining hall during Sunday brunch last year, my best friend caught me up
to speed about her Saturday night. She started by explaining the pre-game, the parties she and her
friends hopped, and eventually told me about the guy she brought back to her dorm. Her tone
suddenly turned grave as she rushed through the story of her sexual experience. When I asked her
if she was okay, she revealed that he removed his condom half-way through intercourse, without
her knowledge. Her eyes flooded with tears as she explained her feelings of personal degradation,
violation, and her deep fear of pregnancy, STD’s, and STI’s. When I asked her if she wanted to
file a report, she refused: adamant that her experience was not ‘sexual assault’ or ‘rape.’
Condom stealthing, or non-consensual condom removal, is an act of gendered violence
which remains largely untouched by law. Our evolving definition of rape derives from our
society’s understanding that sexual violence does not only occur through a matter of force, but
when one violates or does not properly attain consent. Preserving one’s sexual autonomy––the
idea that every adult should be free to decide how to engage in consensual sex––dominates the
understanding of consent within the progressive legal and social realm (Rubenfeld 2013). Condom
stealthing violates an individual’s sexual autonomy as victims of stealthing do not consent to
penetration by the skin of the penis. It also acts as a form of gendered violence as both advocates
for and against stealthing believe the act embodies a man’s desire to exert his dominance over his
partner or plant his “seed” (Brodsky 2017). However, rape laws vary by state and the text of sexual
assault laws across the United States is constrained by the high burden of proof necessary to
convict an individual of condom stealthing no matter which avenue an attorney takes: tort law,
contract law, civil rights law, or criminal law. Alexandra Brodsky from Yale University was the
first to build “condom stealthing” into legal academic literature to bring awareness to this legally
acceptable gendered crime through her internationally recognized article entitled “Rape-Adjacent:
Imagining Legal Responses to Nonconsensual Condom Removal” published in the Columbia
Journal of Gender and Law (Brodsky 2017).
Brodsky’s analysis of condom stealthing as a form of sexual assault, published during the
MeToo movement, gained momentum in legislation in two vastly different states: California and
Wisconsin. The peak of the MeToo movement erupted in 2017 in response to Donald Trump’s
presidential election despite his multiple allegations of sexual assault and his infamous catchphrase
normalizing: “grabbing [women] by the pussy” (Tambe 2018). This period of time brought about
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mass visibility to survivorship, showcased the societal prevalence of sexual violence, and
encouraged more survivors to come forward. In response, state legislators attempted to grant
greater protections to victims of rape by advocating for a definition of assault which encompassed
power dynamics, coercion, and other violations of sexual autonomy (Tambe 2018). Brodsky’s
article gave qualitative evidence of how condom stealthing fell into this category, leading
California State Assemblywoman Christina Garcia (D-58) and Wisconsin State Senator Melissa
Sergeant (D-48) to introduce condom stealthing legislation into their respective legislatures
(Decker & Baroni 2011). Both lawmakers announced their intentions of introducing condom
stealthing into law in May 2017, the only two states in the nation to pursue this progressive rape
reform.
There is no clear ideological or institutional connection between California and Wisconsin
which would point to them leading the pack in progressive sexual assault legislation. Ideological
scores are measures which describe a state legislatures’ placement on the liberal––conservative
continuum (Berry et al. 2010). California has a diverse robust population with the highest
ideological score of 70.38, making it the most progressive state (Fording 2018). California also
has a strong history of expanding consent to embody sexual autonomy being the only state to pass
the Affirmative Consent standard for all colleges and high schools (Kuylman 2015). Wisconsin
tends to be more divided ideologically and more conservative leaning with a low state ideological
score of 20.98 (Fording 2018). In contrast to California, Wisconsin rolled back on progressive
sexual assault legislation under governor Scott Walker, encouraging colleges and institutions to
bypass transparency and accountability mandates when reporting on-campus cases (Bidwell
2015). The deep distinctions between these states begs the question of what it takes for states––
regardless of their political statuses–––to introduce rape reform.
While the bills, accepted into both state legislatures and amended through committees,
were eventually shelved in California and legislatively dismissed in Wisconsin in 2018, why did
similar progressive consent policy agenda-setting on the basis of condom stealthing occur in these
two drastically different states? Through the method of process tracing, I aim to examine the
impact legislation has on our society’s understanding of consent and which social factors push for
the placement of expanded definitions of consent on the policy agenda. This research project holds
broader implications of what pushes state legislatures––regardless of their political leanings––to
advocate for rape legal reform and contribute to the academic literature on sexual consent.
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Background
During the early 1800’s, America’s common law system widely understood consent to be
the “carnal knowledge of a female 10 years or older” (Bishop 2018). This heteronormative
understanding did not take into account domestic abuse, power dynamics, and also kept the age of
consent at an age during pre-pubescent development. In the early 20th century, with the push of
female suffragists, women attempted to change the age of consent to 14, 16, and 18. The women’s
rights and social movements of the late 60’s sparked national response to sexual assault and
violence prevention in the United States, specifically the dramatic rise in reported rape cases in the
late 60’s to the early 70’s (Spohn 1999). Their efforts led to the founding of the first rape crisis
centers in 1974 (Meyer 2000). With growing attention placed on violence against women,
specifically through rape, colleges around the country began to narrowly define consent policies
to respond to assault.
In 1990, Antioch College in Ohio passed one of the most critiqued, and strict consent
policies of the time, mandating all students engaging in sexual activity obtain verbal consent before
proceeding forward (Stark 2018). This process was scrutinized globally, with the popular satire
comedy sketch show Saturday Night Live (SNL) making fun of the policy in a skit entitled “Is It
Date Rape?” Those who pushed against the policy criticized how it forced students, especially
women, to abide, “by the maxim do not trust anyone who does not tell you to trust them,” in
intimate encounters (Good Morning America 1993). Additional arguments surrounded the
heteronormative nature of this policy with many insisting this consent standard targeted men more
than women (Good Morning America 1993). These critiques stemmed from the misogynistic
nature of sexual assault and the role of ‘men’ in society, evident through the history of rape and
sex laws in America.

History of Rape Laws in America

Rape laws were not just founded on misogyny and the power of the patriarchy, but the idea
that sexual autonomy for the woman did not exist. The origins of American sex law attempted to
make most sex illegal unless it was heterosexual, copulative, and marital intercourse. This legal
norm forced women into unsafe situations that limited them to have sex only for reproduction
purposes, endangering their safety and autonomy (Rubenfeld 2013). Sexual autonomy for women
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did not exist within the original American legal landscape as these laws emphasized control over
a woman’s body. Original rape laws defined by the American common law system during the
1800’s encompassed male legislators further subjugating women. For example, a Kentucky
legislator defended the original age of consent––10 years––by stating a, “twelve-year old girl ….
[can] escape the wiles of a seducer as any older woman” (Bishop 2018). This reasoning views rape
not as an act of violence but a choice of the woman to accept or negate a sexual encounter. These
views were perpetuated in legislation entitled the “utmost resistance requirement.” This burden of
proof elicited that a woman was not raped unless it was proven she displayed “utmost resistance”
to the act (People v. Dohring 1874) (Reynolds v. State 1889) (Brown v. State 1906). Given how
challenging it was to present evidence for this arbitrary requirement, women rarely received justice
through the law.
Even within divorce, marriage, and sex laws, patriarchal norms took precedent. In the
origins of marriage law, divorce was illegal––except in terms of male abandonment (Friedman
2004). If a couple separated, the man would receive all the property and ownership of the children,
rendering the woman powerless. Because a woman’s economic and legal role in 19th century
America did not extend past her husband or father and the property they held, women were
essentially rendered non-persons (President and Fellows of Harvard College 2010). While divorce
laws partially evolved at the beginning of the 20th century in conjunction with the first-wave
feminist movement, divorce was limited to instances of “cruelty, desertion, or adultery” (Friedman
2004). However, forms of ‘cruelty’ only involved physical abuse; marital rape was exempt from
rape law (Bishop 2018). The origin of American rape laws viewed matrimony as a bond of consent,
outlawing the premise husbands could rape their wives and cementing patriarchal norms within
American households. Nineteenth century rape laws preserved the male right to, “possess and
subjugate women as sexual objects” (Spohn 1999). It was not until the second-wave feminist
movement in the late-60’s that rape legislation changed.

New Directions for Sexual Autonomy

The second-wave feminist movement pushed to expand protections for victims by de-
gendering and expanding rape laws to acknowledge the widespread prevalence of the crime and
its traumatic and sadistic nature. Feminists criticized traditional rape law for refusing to
acknowledge how the crime is founded upon power dynamics and induces fear, which strongly
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influences women’s choices and restricts their freedom. They further attempted to break the
stereotypes of rapists as violent pathological criminals to draw attention to the mass existence of
rapists who embody an extension of culturally supported gender role stereotypes (Commonwealth
v Fogerty 1857) (People v Chapman 1886). Supplementing these claims with testimonies,
research, and protests, they lastly criticized American state laws for holding “definitions of rape
that excluded males and spouses as victims and that excluded sexual acts other than intercourse”
(Spohn 1999).
This movement successfully pushed for legal reformation which inched closer to a
definition for consent that relied on an individuals’ sexual autonomy. State laws––beginning with
Nebraska in 1976 (Bishop 2018) ––began to recognize marital rape and adopt rape shield laws––
laws barring defense attorneys from interrogating a victim’s prior sexual history or using it as
evidence (Meyer 2000). The passing of Roe v Wade in 1973 responded to the demands of second-
wave feminists by determining that women had a right to privacy in matters of abortion due to
their right to reproductive autonomy (Roe v. Wade 1973). This landmark case marked the
beginning of the definition of consent relying on an individuals’ sexual autonomy, so much so that
circuit court Judge Richard Posner declared, “in a series of decisions between 1965 and 1977, the
Supreme Court created a constitutional right of sexual . . . autonomy, which it called privacy”
(Posner 1994). These legal reformations marked the beginning of the revolution of rape law. The
21st-century feminists and the MeToo movement continued to push for this evolution.
Throughout the 21st century, especially with the MeToo movement, various state laws
adopted legal standards that embraced sexual autonomy and strayed away from archaic
misogynistic understandings of rape. Tarana Burke, a black woman from New York, started the
MeToo movement in 2007 (Tambe 2018). She built empowerment through empathy by
encouraging victims of abuse to adopt the phrase “MeToo” and safely come forward with their
stories (Tarana 2020). From the start of MeToo to its peak in mid-2017, the hashtag “MeToo” was
tweeted over 19 million times on Twitter alone according to the Pew Research Center (Time
Magazine 2019). MeToo’s astonishing momentum in calling out America’s patriarchal roots is
evidence of our society’s huge structural change in embracing progressive definitions of rape
(Savigny 2020). We find this evidence not just by tracking public discourse in embracing survivor
stories, but through state law. New York on July 7, 2015 (Cuomo 2015) and Illinois on August 21,
2015 (Illinois General Assembly 2015) signed several bills into which required individuals
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attending college to abide by an Affirmative Consent standard which placed the responsibility on
the initiator to seek verbal or physical affirmative consent before engaging in any form of sexual
activity (Kuylman 2016). In 2016, California was the first state to pass this Affirmative Consent
standard––a very similar standard that Antioch College passed in 1990––to apply to all colleges
and high schools (Jaschik 2014). However, despite this monumental progress, a lot of states have
pushed back against embracing progressive rape law and uphold some archaic patriarchal
principles.
While most state consent laws embrace an individual’s sexual autonomy, some state legal
statues showcase America’s hesitance to formally adopt full protection for survivors of sexual
assault. In 1977, Cocker v. Georgia determined that rape was, “highly reprehensible...in its almost
total contempt for the…autonomy of the female victim” (Cocker v. Georgia 1977). While the
Supreme Court determined that sexual acts must embrace female sexual autonomy, it
simultaneously decreed that rape––in comparison to murder––did not inflict enough damage on
the victim to merit capital punishment (Rubenfeld 2013). Following the Supreme Court’s lead,
many states upheld the notion that rape was not as violent of a crime. Despite there being extreme
psychological, physical, and medical damages at risk for rape victims, certain states do not
recognize these injuries as gravely ‘serious.’ This apparent gap between U.S. public opinion and
rape law stems from the history of male lawmakers having difficulty understanding the full impact
of rape on victims, who are primarily female (Missirian 2019). Thus, Maryland, Kentucky, and
New Jersey legislatures, “all seem equally unwilling to make the act of rape rise to a level justifying
deadly force in self-defense” (Missirian 2019). Most states––such as Massachusetts, Delaware,
Alabama, and Alaska––determined through their legislation that rape by force was the “worst form
of rape, or rape in the first degree. All other violations of sexual autonomy fell into lower categories
(Decker & Baroni 2011). Condom stealthing legislation serves as a strong example of progressive
rape reform by embodying the definition of sexual autonomy and pushes back against U.S.
hesitation to criminalize forms of sexual assault beyond rape in the first degree.

Condom Stealthing as an Assault on Sexual Autonomy

Condom stealthing is a recent formal definition for a common heinous act. The term
‘stealthing’ was commonly used by the gay community to describe nonconsensual condom
removal which led to HIV transmission decades prior to Brodsky cementing it into legal academic
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literature in 2017 (Klein 2014). Her work acknowledges that the crime of stealthing affects the
heterosexual community as well, and within this realm women are often targeted. Past victims of
condom stealthing described it as traumatizing and degrading, however hesitated to call it sexual
assault. Stealthing largely does not fall under society’s definition of assault even though the
consensus agrees that it is a form of gendered violence (Ahmad et al. 2020). Many condom
stealthing perpetrators view the act of removing the condom as a popular sex trend and their right
to exercise their male sexual supremacy (Brodsky 2017). Through Brodsky’s research, one
perpetrator stated that ejaculating into the female was, “how god created this universe” (Brodsky
2017). However, despite the evidence of misogyny behind stealthing and the contemporary
momentum to treat one’s right to sexual autonomy as the distinguishing factor between sex and
rape, Brodsky explains it would be a challenge to outlaw condom stealthing.
While condom stealthing is a clear violation of one’s sexual autonomy, Brodsky outlines
the institutional drawbacks which allow stealthing to slip through the cracks of our legal landscape.
Condom stealthing relates to a woman's sexual autonomy because she consents to contact with a
condom, not contact with the skin of a penis (Brodsky 2017). Stealthing robs women of their
personal choice of balancing the benefits and risks of their behavior in the same way they would
in consenting to unprotected sex. Stealthing unduly exposes them to risks carrying a higher chance
of pregnancy and STI transmission. However, most U.S. state rape laws hold that, in this same
vein of reasoning of sexual autonomy, adults take risks that “their partners may deceive and betray
them in ways that matter very much” (Buchanan 2015). It is hard for some states to acknowledge
the atrocious effects of rape. Thus, it is not surprising that U.S. precedent finds it challenging to
expand their understanding of consent so that it encompasses not only who individuals consented
to sexually engage with, but also what they consented to within that sexual encounter.
With the national hesitation to expand definitions of sexual assault in current legislation, it
is remarkable that California and Wisconsin spearheaded this rape reform in their respective states.
Condom stealthing legislation brings the right to sexual autonomy to the forefront of rape law.
Individuals should have the choice to determine who they have sex with and how that sexual
encounter progresses. They should also have the opportunity to perform a proper analysis of risk
assessment before engaging in a sexual activity, which condom stealthing violates. California and
Wisconsin broke barriers in rape reform by simply placing stealthing––and thus cementing the
right to sexual autonomy––on the policy agenda. As California and Wisconsin are two different
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ideological states with different legislative histories, investigating why they introduced condom
stealthing bills would help us understand how to push states to adopt progressive rape legislation
which embraces sexual autonomy.

Literature Review
Minimal academic literature exists surrounding agenda-setting for sexual assault reform at
the state-level. Prior studies reveal which aspects of society––symbols, focusing events, media
explosions––push for state policy reform but in other issue areas unrelated to sexual violence
policy. However, even within the realm of agenda-setting research, policy agenda-setting and
state-level policy making are vastly understudied (Tan & Weaver 2009). Additionally, there are
limited comparative studies analyzing California and Wisconsin beyond their relation to dairy farm
work and their respective systems of agriculture (Gilbert 1988) (Harrison 2014). One obvious point
of comparison between the two, however, it that they both house competitive and intellectually
robust systems of public higher education: the University of California and the University of
Wisconsin. Past literature examines the creation of sexual assault policy and sexual violence
reform advocacy at the level of higher education (Karjane 2005) (Graham et al. 2017) (Hirsch &
Khan 2020). An avenue to understand why California and Wisconsin placed condom stealthing on
the agenda would be to inspect the impact these institutions of higher education had on their
respective state legislatures. Overall, to dissect state-level agenda-setting for condom stealthing
legislation, we must look to who has the power to set the agenda, what impact do societal factors
have on the agenda, and how do different social norms frame the agenda.

Principles of Agenda-Setting
There are two methods scholars use to analyze who sets the agenda: the pluralist approach
and the elitist approach. Guy Peters, in his book American Public Policy, describes both ways to
understand who makes policy decisions. The pluralist approach views policymaking as an
opportunity for anyone to advocate for their interests. It assumes that policymaking in the,
“government is divided into a number of separate arenas and that the interests and individuals who
have power in one arena do not necessarily have power in others” (Peters 2018). Therefore, while
this approach does not eliminate competition to dominate the agenda, it allows for “equal public
access” to the policymaking process. Individuals engage in the pluralist approach of agenda-setting
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simply by believing in the political process––voting for the platforms encompassing one’s favored
issue area. The elitist approach limits the players involved in agenda-setting, “assuming the
existence of a power elite that dominates public decision-making and whose interests are served
in the policymaking process” (Peters 2018). Due to long-running entrenched racial and class
interests in America, elitist approach dictates that policies primarily serve the interests of those in
business, who belong to the upper and middle class, and are white (Mills 1961) (Lindblom 1988).
Thus, advocates need to appeal to the powerful elite if they wish for their issue area to be placed
on the agenda.
Issues are more likely to be placed on the agenda based on their correlation to preferred
symbols. A symbol is, “anything that stands for something else,” and often represent important
values of a state (Stone 2011). Branding policies to connect to important national symbols––
freedom, justice, liberty–––will make them more likely to be placed on the national agenda (Peters
2018). Along the same vein, connecting a policy to a state’s preferred symbols will prioritize its
placement on the agenda. However, state ideologies vary across the country and so do their favored
symbols. Johnathon Haidt, a scholar studying the psychology of different political preferences,
identified six different moral metrics: liberty, fairness, loyalty, authority, care, and purity (Haidt
2012). He determined that liberal leaning states––i.e. California, New York, Massachusetts––tend
to favor the symbols of care, fairness, and liberty whereas conservative states––i.e. Alabama,
Alaska, South Dakota––prioritize all of them. Policies that are placed on the agenda depend on the
state and how well advocates paint a narrative connecting their policy to that state’s preferred
symbols (Fischer 2017).
Another method by which advocates can influence the policymaking agenda is by branding
focusing events. Focusing events––sudden, rare, and climatic events which instigate intense media
attention–––are ways that the world learns about problems, leading legislators to then respond to
these issues. (Fischer 2017). An example of a focusing event was 9/11, a large-scale terrorist attack
which dominated the global news cycle for weeks and caused massive changes in immigration and
defense policy (Hines 2006) (Gordon 2001). If a focusing event had intense widespread media
coverage during its time of occurrence, its impact lasts years (Fisher 2017). The shooting of
Arizona Congresswoman Gabby Giffords serves as evidence of a focusing event which holds
strong influence today. In the 2013 Tucson shooting, Giffords was maimed in an event killing six
and injuring 17 (Lacey & Herszenhorn 2011). Gun control advocates, including Giffords herself,
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used this event to highlight what they saw as a gun problem in the United States. While this event
occurred seven years ago, her story and its corresponding narrative pushing for gun control reform
fervently resurfaced during her husband, Mark Kelly’s, 2020 Senate race. The ability of a focusing
event to remain on the public agenda’s radar for lasting periods of time relies on the amount of
widespread media coverage––or media explosions––instigated by the event.

Media Explosions and State-Level Agenda-Setting

Scholars identified media explosions as methods which spark first-level agenda-setting at
the state-level. Media explosions are moments where the same story or policy issue continuously
gets reported across multiple platforms (Boydstun 2003). These examples of mass media do not
just convey status on issues (McClung Lee 1949) but also dictate which issues people should focus
on (B. Cohen 1963). McCombs and Shaw first dissected the media’s effect on agenda-setting in
1972; their study found that the media played a key role in agenda-setting for various national and
local issues regardless of whether or not it was an election period (1972). However, the mass media
and its corresponding effect on agenda-setting has expanded since their original work. Media
explosions expand across not just news sites, but other platforms individuals digest content such
as social media (Geiger 2019). Thus, modern day media explosions occur when stories of societal
problems display across every social media outlet, television station, and newspaper medium.
Within the 21st century, there have been examples correlating media explosions to policy
change. In March 2003, Terri Schiavo––a woman suffering from severe brain damage––was
ordered to have her feeding tube removed by a Florida Circuit Court Judge because she did not
have a living will (Boydstun 2013). In the month leading up to her court-mandated death, her story
was blasted 1,135 times across all television and media outlets and headlined the front page of the
New York Times 16 times. This media explosion drastically raised awareness of living wills,
evident through visits to the U.S. Living Will Registry Website rising tenfold––from 500 to 2500
visits a day (Stacy 2006). This attention led to the passing of “Terri’s Law” in Florida which
reinserted Schiavo’s feeding tube (Snead 2010). The untimely death of Breonna Taylor is a more
recent example of a media explosion influencing agenda-setting. Breonna Taylor was an innocent
Black woman shot by the police responding to a no-knock order––an order which allows officers
to not notify residents of their presence upon entry. Sparking outrage about police brutality,
Breonna Taylor’s death led to a mass uprising across social media with trending tweets, shareable
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infographics, and viral memes (Rosenblatt 2020). As a result, the Louisville city council
unanimously passed “Breonna’s Law” outlawing no-knock orders (Gupta 2020). Kentucky
Senator Rand Paul also introduced legislation to ban ‘no knock orders’ through the Justice for
Breonna Taylor Act (Paul 2020). Both the cases of Schiavo and Taylor point toward a clear
correlation between media, public opinion, and state policy.
Yu Tan and David Weaver from Indiana University conducted a study to specifically
analyze the relationship between media coverage of local newspapers, state-level public opinion,
and state legislative policies. They considered the newspapers as media, public opinion, and the
legislative branch as aggregate units and analyzed each of those aggregate’s entire agendas in
regard to their salience of issues. They then measured the relationships among these three agendas
through ordinal correlations––Spearman’s rho. The saliences of issues of each aggregates was
determined by the number of newspaper stories published on a single issue, the percentage of
people who declared that issue to be of the most importance that year, and the number of state
house bills that dealt with that issue in that year (Tan & Weaver 2009). Their findings revealed
that various states had a different relationship between public opinion and agenda-setting which
was dependent on their state political culture.
Using Elazar’s framework of state political culture, Tan and Weaver determined that the
media had a stronger effect on agenda-setting in states with moralistic political cultures than states
with individualistic political cultures. In 1966, Daniel Elazar developed three classifications for
states to describe the relationships between the citizens of the state and their respective state
governments: moralistic, individualistic, and traditionalistic. Within a moralistic political culture,
individuals view the government as a tool to promote the general welfare (Elazar 1966). They
believe the legislature should work toward a progressive future. An individualistic political culture
believes that the government must serve the needs of the individual, prioritizing self-interest
(Elazar 1966). A traditionalistic political culture tethers itself to the status quo, viewing
government as a means to maintain the social order (Elazar 1966). Tan and Weaver sampled six
moralistic political cultures (Colorado, Minnesota, Oregon, Utah, Washington, and Wisconsin),
three individualistic political cultures (Alaska, Massachusetts, and Nevada), and five traditional
political cultures (Florida, Louisiana, New Mexico, Texas, and Virginia) (Tan & Weaver 2009).
The impact newspaper coverage had on state house policies was greater in the moralistic political
culture states than those with individualistic political culture. The effect newspaper coverage had
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across public opinion remained moderately the same regardless of state political culture.
Therefore, it is clear that depending on the state and their political culture at the time of analysis,
the news media can strongly discern which policies will be placed on the agenda.
Both California and Wisconsin have moralistic state cultures, indicating an inclination to
adopt progressive sexual violence policy if there were sustained media explosions surrounding the
topic of condom stealthing policy (Elazar 1966). However, both Tan and Weaver’s focus on
newspapers as media coverage and Elazar’s classification of state political culture are outdated.
Tan and Weaver conducted their study in 2009 when more people relied on newspapers. According
to the Pew Research Center, 35% of people used newspapers for their news in 2008 as opposed to
16% in 2018 newspapers (Pew Research Center 2008) (Geiger 2019). Looking forward to my
study, I will track coverage of condom stealthing and sexual violence across online news outlets,
social media, and television stations as these are the modern mediums for information
consumption. Additionally, modern critics of Elazar argue that state ideologies––and thus Elazar
classifications––have shifted due to an influx of recent immigrants, the growing divide between
the urban and rural lifestyles, and the developing patterns of population diffusion (Mead 2004).
Given the rapid growth of the immigrant population in California by around 57% since 1984
(Public Policy Institute of California) and the consistent net-out migration patterns in Wisconsin
since the 2008 recession (Center for Research for the Wisconsin Economy), we can assume that
their state political cultures have changed. However, I can use Elazar’s model to inform my own
approach to examining the role of the media in contributing to condom stealthing policy.

State Legislatures and Their Relationship with Institutions of Higher Education

Other than their moralistic state political cultures, California and Wisconsin both have
strong systems of public higher education, an instrument in state and federal policymaking.
Universities are akin to tiny countries given their diverse student environment and the policies they
craft to govern their unique campus climates (Hirsch & Khan, 2020). Institutions of higher
education (IHEs) cultivate the minds of the next generation of adults. As a result, state
governments have increasingly implemented policies to influence the lives of college-students and
their learning outcomes (Holdsworth 2002). Learning outcomes for college-aged students do not
just relate to their curriculum, but their social behaviors as well, including consent and sex
education (Wurdinger et al. 2009). Aside from implementation of state policy to guide college
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students, past research shows that campus administrators have a history of lobbying for policies
that have shaped federal agenda-setting (Cook 2002). During a qualitative survey study conducted
by Constance Ewing Cook from Vanderbilt University, 1,554 college presidents and
administrators responded to questions encompassing their experiences lobbying Washington. The
survey revealed that policy pushed by IHEs impacts federal agenda-setting due to the role higher
education plays in the U.S. economy: a $100 billion industry and 3.1 % of the GDP (Horton &
Andersen 1994). However, while it is confirmed that institutions impact policymaking, the degree
to which each state government collaborates with their system of higher education varies.
Various factors determine the relationship between IHEs and state policy. The private
universities, consolidated higher education governing boards, and various agencies surrounding
higher education have different relationships with their state governments (Berdahl et al. 1971)
(Dill 1997) (McLendon & Hearn 2003). Moreover, it is challenging to predict the level of
collaboration between these various actors–– unique to each state––because they depend on factors
which change over time such as a state’s economy, political climate, and social and cultural
characteristics (Hearn & Holdsworth 2002). To determine the different societal blocks which
produce a state’s culture and its relation to higher education, we have to dissect the states’ history,
traditions, and norms.
Both California and Wisconsin state legislatures hold different historical relationships to
their respective systems of higher education. In the first act of the Wisconsin legislature, the
legislators gave the University of Wisconsin (UW) a role in their legislature, making it a
government priority to establish a strong system of higher education that emphasized quality,
access, and affordability (University of Wisconsin). For 160 years, Wisconsin legislators upheld
this history to keep a commitment to affordable prices for high quality education by supplementing
UW with sufficient tax dollars (Weerts & Ronca 2006). The University of California (UC) system
did not have this same deep historical relationship with their state legislature. California legislators
created the UC simply to provide a, “complete educational system” (California Constitution
Article IX 1849). In 1960, the President of the UC system, Clark Kerr, developed a Master Plan
which related to the 19th century Wisconsin legislators’: creating an affordable UC system which
would lead public research universities. However, with the approval of Kerr’s Master Plan, the
state tied down its budget for the long-term, leaving majority control to the UC Regents Board and
drastically reducing their role in UC decision making (Marginson 2016). While both school
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systems hold different historical relationships with their state legislatures, California and
Wisconsin both have globally recognized university systems. Both systems’ dedication to a high-
quality education encompasses both academic experiences and the college-lifestyle: making
institutions safe and equitable environments for students to learn (Karjane 2005). Thus, prior
research shows colleges crafting progressive sexual assault policies.
Given the vast prevalence of campus sexual assault (CSA) on campus, colleges and
universities have attempted to craft policy to appropriately respond to CSA. A 2006 victimization
survey funded by the U.S. Department of Justice, showed a prevalence rate of 5.15% of rape
among college women at a U.S. university in comparison to a rate of 0.94% for all American
women (Kilpatrick et al. 2007). An additional 2015 survey of around 150,000 students from 27
U.S. universities showed that 24% of women, 6% of men, and 28% of transgender, gender-queer,
gender nonconforming, or gender questioning students reported experiencing sexual assault in
college (Cantor et al. 2015). With these disheartening numbers, the federal government created the
Clery Act in 1990, which mandated that all institutions of higher education report their numbers
of rape cases––adding congressional pressure to make campuses safer social domains (Fisher et
al. 2002). In 1992, the Clery Act expanded to include the Campus Sexual Assault Victims’ Bill of
Rights, which gave certain rights to sexual assault victims on campus and in 2013, the Clery Act
mandated reports of sexual assault, abuse, domestic, violence, and stalking (Richards & Kafonek
2016). In response to the Clery Act and their own motivations to respond to CSA, almost 95% of
U.S. IHEs outlined policies which encompassed prevention and response methods to CSA
(Graham et al. 2017). While federal legislation has been instrumental in pushing forward IHE
policy, many state legislatures believe the policies implemented by the federal government do not
address the widespread issue of CSA enough.
A study conducted by Richards and Kafonek in the Journal of Feminist Criminology
dissected the response of state legislatures to compensate for the limitations of federal legislation
(2016). The aforementioned federal legislation surrounding the Clery Act––along with Title IX
mandates and guidance by the Office of Civil Rights (OCR)––provide the minimum standards for
policies that IHEs needed to implement. Many best practices are optional, such as trauma-informed
training for campus administration, staff, and faculty (White House Task Force 2017). There are
also no mandatory federal requirements for other preventative measures of sexual violence beyond
the baseline standards, despite research showing a direct correlation between comprehensive CSA
 16

policies and lower CSA prevalence (DeLong et al. 2018). To uncover how many states
incorporated legislation beyond those mandated by Washington, Richards and Kafonek gathered
proposed and passed legislation during the 2014-2015 cycle. They then identified themes regarding
sexual assault legislative aims by coding key words encompassing CSA education and prevention.
They concluded that 28 states had discussed a total of 70 bills related to CSA, with the largest
trends (43%) in legislation focusing on modifying policy and procedure (Richards & Kafonek
2016). This study makes clear that state legislatures notice the need to expand CSA policy and
procedure to decrease assault prevalence on campus.
State legislatures could adopt condom stealthing legislation following the same trend of
advocating for robust campus sexual assault policies given that stealthing is a common violation
of consent within IHEs. While stealthing is a relatively new term defined by Brodsky, it has been
a long-term atrocious practice. There are few peer-reviewed U.S. studies on stealthing given its
novelty in academic literature. An Australian study revealed that 32% of women who attended
health service clinics reported experiencing stealthing (Latimer 2018). With a gap in American
stealthing academic literature, a very recent study conducted by Ahmad, Becerra, Hernandez,
Okpala, Olney, and Becerra assessed how college students understand and feel about stealthing
(2020). They utilized a mixed-method study which engaged qualitative data through surveys and
focus groups centered around how students from a mid-sized public university comprehended
consent, and thus stealthing. While the study discovered that most students could not define
stealthing, once explained to them they acknowledged its vast prevalence in college and associated
it with strong negative connotations. Subjects consistently agreed that removing the condom
violated another person’s being by putting their sexual health at risk. This study also strongly
revealed that definitions what consent entails varied across subjects, calling attention to the need
for an improved sex health education policy within IHEs.
Basic principles of agenda-setting, media explosions, and the relationships between state
legislatures and public IHEs could represent the means by which California and Wisconsin paved
the way in condom stealthing legislation. By constructing empirical timelines through the method
of process tracing, I would identify factors and congruent patterns across both states which would
reveal why these two states placed progressive rape legislation on their agendas. Process tracing,
in its updated framework established by David Collier, “is defined as the systematic examination
of diagnostic evidence selected and analyzed in light of research questions and hypotheses posed
 17

by the investigator” (Collier 2011). Through this framework, a descriptive chronological timeline
of qualitative accounts and catalyzing events is assembled to answer a research question. Process
tracing gives inference leverage to the researcher to give more qualitative evidence to accompany
quantitative data. With limited past research surrounding my research question, process tracing
presents the best method to investigate what factors motivated condom stealthing to be placed on
the agenda.
My study aims to fill the gaps left by previous literature to dissect condom stealthing policy
and the agenda-setting process at the state-level. I will utilize Collier’s process tracing framework
and methods presented by Tan and Weaver and Richards and Kafonek throughout my research.

Research Design and Methods

I aim to undergo a process tracing approach to build a qualitative timeline for condom
stealthing legislation in California and Wisconsin. I will then cross-reference these chronological
narratives to assess cross-state patterns, indicating which social, institutional, or ideological factors
point toward condom stealthing agenda-setting. In crafting these qualitative timelines, I will
separate my research into three categories: media explosions, legislative history, and IHEs
response to on-campus sexual assault.
Starting in 1990––marking the passing of Antioch's affirmative consent policy and the
nation's attention to expanding definitions of consent–––I will chronologically track which media
stories regarding sexual violence garnered state-wide attention. Referring to Tan and Weaver's
study regarding the direct relation between newspaper coverage and state policy agenda-setting,
dissecting the mediums that serve as news outlets for the American public will point toward the
policy issues being placed on each state's agenda. Thus, I will be collecting news stories from
newspaper archives up until the mid-2000s. I will then gather policy information from online news
outlets, television stories, and trending social media posts that focus on sexual assault reform,
definitions of consent, and condom stealthing. In identifying media explosions, I will additionally
classify news stories that spread across multiple platforms. In searching for these news stories, I
will rely on databases such as LexisNexis and the TweetSets library at George Washington
University: a platform that has identified trends on Twitter and Facebook over the last decade in
response to keywords such as "women's rights" and "MeToo."
 18

I will then construct a timeline of each condom stealthing bill's legislative history along
with other major legislative steps in regard to sexual assault reform and place it within my media
explosion narrative. In dissecting the history of the condom stealthing legislation within California
and Wisconsin, I will collect data on California representative Christina Garcia and Wisconsin
legislator Melissa Sergeant and their legislative accounts. I will investigate the past interviews with
both legislators and press releases from their district offices. In the same vein as the research
conducted by Richards and Kafonek, I will track all the legislation proposed by both Garcia and
Sergeant through the National Conference of State Legislatures database. I will specifically look
for patterns in key phrases both legislators presented in introducing condom stealthing legislation
and analyze how it relates to sexual autonomy and consent. In this process, I will also notice which
advocacy groups were proponents of and assisted in pushing for this legislation. Aside from
compiling the documentation and qualitative reasoning on the development of condom stealthing
legislation, I will track each bills' revisions and referrals to committees through each respective
state's legislative websites and archives.
In the last step in constructing my empirical dataset through process tracing, I will assemble
data on both the University of California and University of Wisconsin, as wells as potential factors
contributing to the introduction of sexual assault legislation at the state level. I will gather
information on each college systems' sexual assault advocacy groups, student organizations
focusing on progressive sexual assault reform, sex education measures, implemented sexual
violence curriculum, faculty response to sexual assault on campus, and administrative sexual
assault policies for response and prevention to determine their prioritization of addressing CSA.
By dissecting statements, interviews conducted by the UC and UW Regents boards, and the
information available on each campus's websites, I aim to identify the aspects on each college
campus that could have impacted correspondence with state legislatures agenda-setting at the state-
level. Besides the Regents Board, I will also look into the various programming issued by on-
campus student organizations across both the UC and UW systems and its effects on campus
climate and culture to assess whether they had an effect on state-level agenda-setting.
Through my methodology, I will search for consistent patterns across both states that signal
which social factors, legislative actors, media explosions, or influences of IHEs impacted––or
played a significant role in––state-level agenda-setting.
 19

Preliminary Suppositions and Implications

The discoveries uncovered through my research will have theoretical significance in
assessing progressive agenda-setting at the state level and both social and legal perspectives of
consent. My research will also draw attention to the importance of addressing condom stealthing
through legal and community-based approaches.
Given the limited academic literature on agenda-setting at the state level, my research will
provide an in-depth analysis into which factors push individual states to adopt progressive policies
within the realm of sexual violence prevention. In identifying these characteristics, advocacy
groups in individual states will better understand how to push for adopting state policies centered
around sex education and inclusive definitions of consent. This research has implications for how
other gender-based violence advocates can push for agenda-setting at the state level.
Concerning agenda-setting methods, my study will explore the possibility of IHEs acting
as policy hubs for state legislatures. With no prior studies looking at colleges and universities'
effects on state-level agenda-setting, this study will open the doors for future researchers and
scholars to investigate other state and federal policies that have drawn influence from university
culture. This research will show how colleges can extend past higher education policy and
encourage students, faculty, administrators, and staff to engage in more advocacy. It will also
encourage state legislators to use university systems as a model to craft sexual violence response
and prevention policies to extend past college-aged students.
My study’s results will also present qualitative evidence showcasing the violation of sexual
autonomy and reveal the strong correlation between the right to sexual autonomy and consent.
Through a detailed qualitative narrative on current trends in consent dialogue and condom
stealthing legislation, my research will demonstrate a need for policymakers to acknowledge the
prevalence of condom stealthing and pursue legislation that addresses the violence of
nonconsensual condom removal.

Conclusion
Condom stealthing risks the health and safety of its victims and traumatically violates one’s
sexual autonomy. Despite recent research revealing its common prevalence in our society and
public opinion agreeing it is unjust, this crime is accepted under the current American legal
landscape. However, following a 2017 legal academic article by Alexandra Brodsky articulating
 20

stealthing and its missing placement in law, state elected officials in California and Wisconsin
introduced condom stealthing bills within their legislatures. Both states placed progressive rape
reform on their agendas given that condom stealthing embodies sexual assault under the modern-
progressive understanding of consent relating to one’s sexual autonomy. As California and
Wisconsin have strongly different societies, ideological scores, and economies, my study aims to
uncover why these two states placed condom stealthing on their respective agendas.
This research question leads to larger theoretical questions inquiring about the U.S.’s legal
capacity to expand sexual assault legislation to include condom stealthing as sexual violence. My
research has larger implications for how sexual assault legislation informs our society’s
understanding of consent and what social factors push for placement of expanded definitions of
consent onto the policy agenda. To analyze these questions, I will build qualitative timelines––
through the process tracing method–– on California and Wisconsin condom stealthing legislation
which focuses on media explosions, legislative history, and responses to sexual assault in
institutions of higher education. I will then analyze media explosions more widely to investigate
discourse surrounding consent, sexual assault, and condom stealthing. I will also dissect the
language use of condom stealthing legislation and advocacy efforts that occurred to place this
policy on the state agenda. This research will be the first to investigate condom stealthing
legislation and its correlation to state-level agenda-setting, paving the way for future scholars to
determine how to place progressive rape reform on the state agenda.

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