21 April 2021

ACT moves to criminalise 'stealthing'

| Dominic Giannini
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Elizabeth Lee

Opposition Elizabeth Lee is moving to explicitly criminalise stealthing in the ACT. Photo: Michelle Kroll.

Opposition Leader Elizabeth Lee will introduce a bill in the Legislative Assembly today to criminalise the act of ‘stealthing’ – the non-consensual removal of a condom during sex – by patching up the legal grey area the practice is shrouded by.

Stealthing can range from the offence of procuring a sexual act by fraud to rape on the basis that there is no consent, but there is no explicit law in Australia criminalising the practice, according to the Country Court of Victoria.

Only 1 per cent of people who had been subject to stealthing reported it to police despite more than half of victims reporting emotional distress following the incident, a 2018 study conducted by Monash University and the Melbourne Sexual Health Centre found.

It further revealed more than 30 per cent of women and just under 20 per cent of men said they had been stealthed.

The practice can leave people with both physical and psychological harm, including sexually transmitted infections and unplanned pregnancies, as well as depression, anxiety, trust issues and post-traumatic stress disorder after the incident.

Canberra Rape Crisis Centre CEO Chrystina Stanford said current laws do not adequately capture how consent is navigated, including that a person can withdraw consent at any point during sex and can consent to some things but not others.

“Current legislation around sexual assault has not progressed at the speed of our society’s evolution,” she said.

“Stealthing fits with consent in that if someone does not know the other has removed their condom, they cannot have consented to it.

“It becomes a betrayal and a crime.”

READ MORE ‘Rape is not a relationship’: abuse survivors reinvigorate debate over wording

Justice for victims can be difficult to attain as there is no specific article in the ACT Crimes Act that references the practice of stealthing.

Ms Lee will today (22 April) introduce a Bill to amend the Crimes Act to explicitly state that consent is negated by an intentional misrepresentation about using a condom.

Ms Lee said including the practice of stealthing in the Crimes Act would make the law clearer, make the community safer and provide further education to children, teenagers and the community about consent.

“Stealthing is an appalling thing to do to any woman; any man; any person. It completely erodes the trust that a person can put in someone during the most vulnerable of moments. It is a violation of dignity and autonomy,” she said.

“Stealthing can be a very traumatic thing to experience. It can take away a person’s self-determination, their agency, and leave them feeling completely vulnerable.

“This Bill is about making our voice loud and clear that no means no.”

Ms Stanford said the legislation was an important aspect of being able to hold perpetrators to account and reflects the importance of negotiating consent.

“[It] reinforces rape is not about sex, it is about the abuse of power over another,” she said. “Removing a condom during sex without the other’s knowledge is an act of taking power in many ways as it places the other person at risk both emotionally and physically.

“Sexual assault remains the most under-reported crime in the community. If there is not a risk of being held to account it frees perpetrators up to do as they please.

“Changing laws does not change culture but if doing the wrong thing is made harder and there is a greater risk of being held to account by a strong legal framework, then rates of sexual assault will decrease in our communities.”

Heidi Yates

ACT Victims of Crime Commissioner Heidi Yates said there needs to be more clarity around stealthing. Photo: Michelle Kroll.

Victims of Crime Commissioner Heidi Yates said hearing about the practice from victims who came forward to her office was “not unusual” and that a lack of clarity around sexual assault laws deterred victims from reporting the crime.

“A vast number of sexual assaults do not get reported because the victim is not sure if what happened to them is against the law,” she said.

An overhaul of consent laws and the legislative reform of sexual assault, including a clear definition of stealthing, was also recommended by the NSW Law Reform Commission in November last year.

Attorney-General Shane Rattenbury said it is the governments view that stealthing is already illegal under the Crimes Act with consent being negated if obtained by fraud but that there may be value in putting the offence beyond doubt.

“Put simply, stealthing is rape,” he said.

Ms Lee said the conviction of a man in New Zealand for rape after he removed a condom during sex without the woman’s consent set a new precedent.

A similar conviction is yet to be recorded in Australia although there is a current case before the Victorian courts involving a Melbourne surgeon who has been charged with rape and sexual assault after allegedly removing a condom without consent.

Another man in Victoria man received a two-year community correction order, 150 hours of community service, and instruction to undertake rehabilitation programs for stealthing after pleading guilty to procuring a sexual act by fraud in February last year.

If this story has brought up any issues, you can contact the Canberra Rape Crisis Centre’s support line on 6247 2525 between 7:00 am and 11:00 pm for all counselling-related inquiries, including all appointments and referrals.

1800RESPECT, the national sexual assault, domestic and family violence counselling service, can be contacted 24 hours a day, seven days a week on 1800 737 732.

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“… a Bill to amend the Crimes Act to explicitly state that consent is negated by an intentional misrepresentation about using a condom.”
Why limit it just to a condom? If anti-stealthing laws seek to make a crime of intentional misrepresentation then it should also apply to any contraceptive. Women who falsely claim to be on the pill or using an IUD, but are actually seeking to get pregnant without the consent of the men are just as guilty of misrepresentation. The effect is the same if the woman gets pregnant through intentional misrepresentation about her contraception – a violation of dignity and autonomy, the abuse of power over another, unwanted parenthood, ongoing financial support, trauma, depression….
Consent is negated if obtained by fraud. It is not ok to deceive women, or men.

Capital Retro12:22 pm 22 Apr 21

Clearly, having sex these days necessitates a risk assessment beforehand.

Stupid. They slip off accidently.

Then you stop and fix it. It isn’t difficult.

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