(1) A person who engaged in sexual contact or sexual penetration with another person may bring a civil action against that other person if prior to sexual contact or sexual penetration both persons understood and agreed that a sexually protective device would be used, and the other person:

(a) Engaged or continued to engage in sexual contact or sexual penetration after the other person:

(i) Removed the sexually protective device without consent of the person bringing the action; or

(ii) Knew or became aware that the sexually protective device had been unintentionally removed, but did not obtain consent from the person bringing the action to engage or continue engaging in sexual contact or sexual penetration without the use of a sexually protective device;

(b) Engaged or continued engaging in sexual contact or sexual penetration after tampering with the sexually protective device without the consent of the person bringing the action and in a manner likely to render the device ineffective for its common purpose;

(c) Without consent of the person bringing the action used a sexually protective device that the other person knew had been tampered with in a manner likely to render the device ineffective for its common purpose; or

(d) Misled the person bringing the action into believing that a sexually protective device was used by the other person and the other person knew that the device was not used, had been tampered with, or was otherwise inoperable.

(2) Evidence that the person bringing the action consented to previous sexual contact or sexual penetration without a sexually protective device or to removing or tampering with a sexually protective device during previous sexual contact or sexual penetration does not by itself establish consent to any subsequent sexual contact or sexual penetration without a sexually protective device or to removing or tampering with a sexually protective device in any subsequent sexual contact or sexual penetration.