AUBURN — A little known, two-year-old Maine law is at the center of a criminal case against a local man who is being accused of removing a condom during sex without the consent of the woman he met on a dating app in April.

Written by Democratic state Rep. Nina Milliken of Blue Hill, the law calls for civil penalties however — not criminal ones — for those proven to have willfully removed a condom during a sex act. 

That might come as a surprise to 24-year-old Joseph Fusaro, an Auburn man who was arrested for gross sexual assault last week after a woman he had met on Tinder accused him of removing a condom at some point after she had instructed him to keep wearing it. 

Milliken has described the act of secretly removing a condom during sex as “stealthing” and claims it is more common than some might believe. 

“I am a little surprised to see this case being criminally charged,” said Milliken, who reached out to the Sun Journal on Tuesday after reading about the charges again Fusaro. “I am not familiar with any similar case being successfully prosecuted in Maine, and maybe not nationally.” 

Fusaro was arrested by Auburn police on April 28 after the 31-year-old woman he’d had sex with at his apartment called to report that the man she knew only as “Joe” had either removed the condom or that he had continued having sex with her knowing that it had fallen off. 

Fusaro was taken to the Androscoggin County Jail in Auburn. Fusaro, who is free on $2,060 bail, declined a request to be interviewed on the advice of his attorney. 

The charge of gross sexual assault carries a penalty of up to 10 years in prison. 

Auburn police Chief Jason Moen said the officer who investigated the complaint consulted with the District Attorney’s Office before making an arrest. 

Police, at the time, were aware of the new law pertaining to condom removal, although they had never made an arrest based on it, he said. 

“This was the first case of it I’ve seen,” Moen said. 

District Attorney Neil McLean said he first heard about the case when he read it in the Sun Journal. The prosecutor handling the case was out of the office on Tuesday, preparing for an unrelated case. 

McLean said he had not seen all the information about the allegations so he couldn’t comment directly on the nuances of the case. 

“I’m still digging into it,” McLean said. “I don’t disagree that it’s an unusual case as it’s described.”

Before his arrest, Fusaro was interviewed by Auburn police Officer Steven R. Friedrich at his parents’ home in Lisbon. Friedrich wrote in his affidavit that the fact that Fusaro had finished the sex act after the condom had fallen off warranted the charge of gross sexual assault.

The Maine criminal statute on gross sexual assault does not address the matter of condom removal.  

Lewiston attorney James Homaniec, who is not connected to the Fusaro case, said on Tuesday that given current Maine law, he was surprised by the charges.

“I have handled over 10,000 criminal cases over the past 40 years and I have never seen criminal charges for anything close to resembling this,” he said. “These are very scary charges and it seems to me that we are running the risk of opening a very large can of worms. Criminal charges can obviously destroy a person’s life and charges should be brought only after very careful consideration.

“Not every time something unfortunate happens does it mean that a crime has been committed,” Howaniec said. “It is my hope that the District Attorney will review this case and decide not to prosecute it.”

The woman who reported Fusaro to police said the couple engaged in consensual sexual intercourse, with Fusaro using a condom, and that “Joe asked to take the condom off in the middle of having sex and she told him no,” according to the affidavit. The woman said when the pair changed positions, “the condom was either removed by Joe or fell off.” 

When she discovered what had happened, the woman told police, she immediately left the apartment and went to a drug store to buy the emergency contraceptive Plan B. 

CONSENT IS KEY

Meg Hatch, executive director of the Sexual Assault Prevention and Response Services, disagrees with the idea that the Auburn case is unusual. It might be unusual for police, she said, but only because so few sexual assaults get reported. 

“We hear about a wide range of experiences where consent is not respected at some point during an interaction,” Hatch said. “Consent is an ongoing agreement between the people involved. It can be granted and taken back at any point and the obligation is on each individual to respect the other person’s boundaries. When consent is not respected, the situation can turn into a sexual assault.” 

Milliken, the lawmaker, wrote an opinion piece about that matter two years ago in the Portland Press Herald. 

“According to research, roughly 12% of women will experience an act of stealthing in their lifetime,” she wrote. “Stealthing victims often leave the encounter feeling many of the same feelings reported by rape victims. They feel violated, ashamed, traumatized and scared.” 

Before her law was passed, Milliken said, there was no recourse for a person who had experienced stealth condom removal from a partner.

 “As an advocate and a teacher, I have had many young women reach out to me to disclose that they had been victims of stealthing, an assault they often described as a rape,” Milliken wrote. “As they told me their stories, I would feel totally gutted when I had to explain to them that there was no use in reporting their experiences to the police or to an attorney. What had happened to them was totally legal, because the act of sneakily removing a condom does not violate Maine law.” 

Under the new law, the victims of this type of condom removal have the option of filing a lawsuit against the accused, with a six-year statute of limitations. 

IF YOU or someone you know has experienced sexual abuse, you can call Maine’s Sexual Assault Crisis and Support Line at 1-800-871-7741 to talk to someone who can help. You can learn more online here.

OR you can call National Sexual Assault Hotline at 1-800-656-4673 or chat at online.rainn.org