Calls for stealthing to be criminalised across Australia after ACT reform

‘Stealthing’ or the removal of a condom without a partner’s permission is considered sexual assault, as it is an act done without consent. But advocates say explicit laws, like those passed in the ACT this week, make prosecution easier and education straightforward.

A general view of condoms.

'Stealthing' has serious physical and mental health ramifications, including STI’s, unwanted pregnancies and post-traumatic stress. Source: AAP

Women’s rights groups, criminologists and lawyers have called for the ACT’s new laws on ‘stealthing’ to be enacted in all Australian jurisdictions.

Stealthing is the act of removing a condom without a partner's knowledge or consent during sex, or not using a condom at all, after consent was given on the proviso of condom use.

It also has serious physical and mental health ramifications, including STIs, unwanted pregnancies and post-traumatic stress.

Data shows the practice is common. A 2018 study by Monash University and the Melbourne Sexual Health Centre surveyed 2,000 people and found one in three women - and almost one in five men who have sex with men - had experienced stealthing.

A 2019 American study of 626 men, aged between 21 and 30, found 10 per cent had non-consensually removed a condom and of those who admitted to the offence, they had done it, on average, three to four times in their life.

“It is a massive problem and it is a much bigger problem than we realise. Those of us that work on the frontlines and supporting people directly impacted by sexual assault know that it’s something that has actually gotten worse over time,” the CEO of Rape and Domestic Violence Services Australia Hayley Foster told SBS News.

“It something that hasn’t really been spoken about and I think part of that is because the law haven’t been explicit about it.”

The law is now explicit in nation’s capital, after the ACT passed laws expressly identifying ‘stealthing’ as a criminal act. Similar laws were passed in California on Friday, making it the first US jurisdiction to do so.

The ACT law defines stealthing as a situation "where consent is given on the basis that a condom be used during sexual intercourse and the alleged offender either removes the condom or does not put on a condom at all and intentionally does not inform the other person".

Across the Tasman, in New Zealand, there is legal precedent clarifying stealthing is sexual assault, following a conviction earlier this year.

In April, a Wellington man was found guilty of rape and sentenced to more than three years in prison, after twice removing a condom during intercourse. The judge found the assault had seriously risked the woman’s health and caused severe mental stress.

The United Kingdom, Switzerland, Canada and Germany have seen successful convictions for stealthing.

A legal grey area

There is a legal argument that stealthing is already illegal across Australia, as it is done without consent. A partner may have consented to sex, on the proviso of using a condom, so the removal of this without their knowledge or permission, violates this consent.

This is yet to be tested in an Australian court, and academics are not positive it will hold up.

“There is not a clear answer to that. The best answer is that it might,” Dr Brianna Chesser told SBS News.

Dr Brianna Chesser is a criminologist at RMIT University, a criminal lawyer and clinical psychologist.
Source: Brianna Chesser/supplied

This is why she is calling for clearer laws to be introduced across the country.

“An explicit addition to the legislation would assist prosecutors to be quite clear about the legal status of stealthing,” the criminologist said.

Colleague Dr Rachael Burgin, who is a senior lecturer in law at Swinburne University, has also called for the ACT’s explicit laws to be replicated.

“What we have seen is some disagreement about whether it is already covered by law … that is very hotly debated. The ACT has been able to move beyond that argument and make sure that it is,” she said.

Clear laws make education straightforward, advocates say

Women’s rights advocates argue clear laws will empower those who have experienced stealthing to come forward and it could also help educate the wider community.

“Including this provision in the law, explicitly referring to the removal or misrepresentation about the use of a condom, will increase reporting, because people can identify that they have been harmed; and they can identify there is legal recognition of that harm,” Dr Burgin said.

Dr Rachael Burgin is the executive director of Rape and Sexual Assault Research and Advocacy (RASARA).

“It will make people who have experience stealthing aware that it is a criminal act and thus increasing the likelihood they will report.”

The ultimate goal is preventing it altogether, and Rape and Domestic Violence Services Australia’s Hayley Foster said clear and consistent laws across Australia will help educate the public about what is acceptable and what is not.

“If we don’t have strong laws that are really clear, then it is really hard to do that public education that is necessary to change behaviour and start preventing it,” Ms Foster said.

“Because it is [currently] not clearly articulated, it does make it quite grey and many people in the community don’t understand that, that it [stealthing] is sexual assault.”

“The law is really important for setting norms and expectations and from there we can do some really important education.”

There is currently a case of alleged stealthing before the courts in Victoria. The case has been adjourned until next year because of COVID-19.

Published 10 October 2021 at 5:25pm, updated 11 October 2021 at 8:02am
By Lucy Murray
Source: SBS News