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© Provided by Are Media Pty Ltd Over the last two years, laws pertaining to sexual assault and consent have been scrutinised, debated and overhauled, and recently the focus has been on stealthing—the act of removing a condom without consent during sex.
This article deals with sexual assault and may be triggering for some readers.
Australian state governments are finally listening to women. Over the last two years, laws pertaining to sexual assault and consent have been scrutinised, debated and reformed, and stealthing—the act of removing a condom without consent during sex—has been a major part of that.
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Up until recently, stealthing was rarely discussed publicly. In fact, the word 'stealthing' still comes up with a red squiggly line beneath it when typing it out on multiple digital writing platforms—a reflection of how little it's been acknowledged in the past. But stealthing is not new. In fact, a 2018 study at a sexual health clinic in Melbourne found that 32 per cent of women and 19 per cent of men had experienced stealthing.
Australian writer Monica Tan was one of the first people to publicly point out the potential impacts of the act in 2015, when she described it as "sort-of" rape in an article for The Guardian. In 2017, the act was likened to being "rape-adjacent" by an American civil rights lawyer, Alexandra Brodsky, which sparked calls for it to be criminalised under state law. British playwright Michaela Coel also called out the act in her gripping television series, I May Destroy You in 2019—in it, she explored the 'grey' areas of consent and the detrimental impacts this has without legal regulation and education.
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The conversation has made its way back to the lawmakers in Australia—in 2021, ACT became the first Australian state to criminalise stealthing. The milestone moment happened around the same time the New South Wales and Victorian Governments introduced bills to adopt the affirmative consent model, whereby a person takes active steps to ensure they have established whether another person wants to have sex before they engage in the act.
The tide, it seems, is finally turning in matters of consent.
"Recent reforms to the law of consent in NSW and Victoria are likely to have been influenced by international factors as well as the local context," Professor Julia Quilter of the Wollongong School Of Law tells ELLE Australia.
"Globally the #MeToo movement has highlighted the need for reforms in relation to consent... As is often the case in a federation like Australia, when criminal laws are passed in one jurisdiction the model is 'borrowed' by another."
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So what exactly is stealthing and how will it be criminalised?
Stealthing is defined as the act of one person removing a condom without their sexual partner's knowledge or consent during intercourse.
When it comes to criminalising the act, Professor Quilter reiterates that stealthing itself isn't necessarily a stand-alone offence.
"Unlike 'choking, suffocation or strangulation' [which are considered stand-alone criminal offences], 'stealthing' may be criminalised through the general law of sexual assault in NSW or the offence of rape in Victoria," she explains.
"This is because recent amendments have (or will) broaden either the general definition of 'consent' to incorporate stealthing and/or make it a factor of non-consent."
She adds that by making stealthing a part of the broader definition of consent, it's easier for state governments to criminalise the act.
"Had state governments chosen a pathway that made 'stealthing' a stand-alone offence the reforms may have encountered more difficulties," she explains.
So where does each Australian state stand when it comes to stealthing? Below, we break it down.
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ACT was the first Australian state to criminalise stealthing, doing so in October 2021. Under state law, it is illegal to remove a condom during sex. It is also illegal to not use a condom at all in circumstances where condom use was previously agreed on.
ACT Liberal leader Elizabeth Lee introduced the new legislation to a unanimous vote, stating that the act risked both physical and psychological health—including transmission of STIs, unplanned pregnancies, anxiety, depression and post-traumatic stress.
"We need to act proactively and send a clear message to the community that this behaviour is unacceptable, and a crime," she said.
New South Wales
Stealthing was criminalised as part of NSW's wider consent law reforms, which came into affect in June 2022.
The state's affirmative consent model came into effect—the law states that even if a person consents to one sexual act, they have not consented to other sexual acts—stealthing is provided as an example: "A person who consents to a sexual activity using a condom is not, by reason only of that fact, to be taken to consent to a sexual activity without using a condom."
In August 2022, Victorian Attorney General Jaclyn Symes announced the affirmative consent model and the criminalisation of stealthing would be introduced to the Victorian government.
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"An affirmative consent model is an important part of changing community attitudes towards sexual offences moving away from victim-blaming and reducing the shame and trauma often felt by victim-survivors," Symes said in a statement.
"Hopefully, this legislation will translate not only to better justice outcomes for victims of sexual assault but also provide an opportunity for a broader conversation in the community about the nature of respectful sexual relationships."
If the laws pass, they will come into effect in Victoria in 2023.
Status: In progress.
Like Victoria, the Queensland government is set to introduce a bill that would recognise stealthing as a crime.
It comes after the Queensland Women's And Safety Justice Taskforce released its 2022 report which recommended a similar model to the one adopted in New South Wales, which acknowledges that consent can not be assumed for one thing if it is given for another.
"Queensland should explicitly recognise this in the same manner as New South Wales, by providing that a person who consents to a particular sexual activity is not, by reason only of that fact, to be taken to consent to any other sexual activity. A legislative example of unlawful stealthing should be provided," the report states.
Status: In progress.
Tasmania has now criminalised stealthing after first introducing the bill to parliament in 2021.
Attorney-General Elise Archer said the reform would strengthen the state's laws and send "a strong message that violence in any form will not be tolerated in Tasmania."
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She added that the criminalisation of stealthing would "help educate the public, discourage would-be offenders, and encourage complaints and prosecutions for sexual offences such as rape."
South Australia is also in the process of reforming its laws around stealthing. In October 2021, Attorney General spokesperson Connie Bonaros introduced a bill that would categorise stealthing as a type of sexual assault.
South Australia's introduction of the bill came shortly after the ACT criminalised the act, which sparked a nation-wide conversation.
"If you had asked me back in January what stealthing is, I would have had no idea," Bonaros said in a statement in October.
"We have been consulting on this Bill for a good part of the year and have spoken with a broad range of stakeholders—from public health experts to victims. Stealthing is a repugnant, appalling thing to do to any person."
Status: In progress.
Western Australia has not yet moved to formally criminalise the act of stealthing, however in February 2022, the Attorney General, John Quigley, tasked the Law Reform Commission of Western Australia to scrutinise the state's sexual offence laws and the legal concept of 'consent'.
The findings of the report are yet to be released, but it is hoped that it will spark reform in its definitions of consent and stealthing in line with New South Wales, ACT and Tasmania.
Like Western Australia, the Northern Territory government have not yet moved to criminalise stealthing. As it stands, a person is guilty of a crime if they have sexual intercourse with another person without the other person's consent and knows about, or is reckless as to, the lack of consent.
This legislation isn't specifically within the remit of the affirmative consent model, which requires an enthusiastic yes in order to determine consent, but like New South Wales, this law could be reformed to include the parameters of affirmative consent, using stealthing as an example like Victoria and Queensland are aiming to do. Here's hoping that happens.
If this post brings up any issues for you, or if you feel like you need to speak to someone, please call 1800 RESPECT (1800 737 732) – the national sexual assault, domestic and family violence counselling service or contact Full Stop Australia.
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