Why Are Australia’s Stealthing Laws So Far Behind?

Content warning: This article discusses sexual assault and domestic abuse in a way that may be distressing to some readers. 
Consent goes much further than the clinical ‘no means no’ slogan we were taught. Abuse comes in many insidious forms, including workplace sexual harassment, cohesive control, grooming, love bombing... the list goes on. 
'Stealthing' is a form of contraceptive sabotage where someone removes a condom during sex without their partner’s knowledge or consent. It’s a form of nonconsensual sex because it invalidates the consent terms previously given. According to a 2019 study, 12% of young women say that they’ve experienced it, and another study from the same year revealed that 10% of young men admit to doing it.
“[Stealthing] a heinous act which negates consent,” Elizabeth Lee MLA, Leader of the Canberra Liberals tells Refinery29 Australia. “Sex without consent is sexual assault and sexual assault is a crime.”
In a landmark first, the ACT has become the first jurisdiction to criminalise stealthing in Australia. Yesterday, the new legislation introduced by Lee passed unanimously in the ACT Legislative Assembly. The bill will not just make stealthing illegal, but also not include not using a condom at all after consent has been given.
"Instead of waiting until the victim comes forward, and the case is taken through the courts to determine, without doubt, that stealthing is a crime, I was drawn as a legislator to make sure that our laws put this beyond doubt,” she told the Legislative Assembly.
In the past four years, the term ‘stealthing’ has risen in popularity and become more widely understood. 

Stealthing falls outside of stereotypical understandings of what constitutes sexual violence.

“Until recently, we lacked the language to really articulate non-consensual condom removal as a form of harm. It's very hard to discuss something without having the language to do so,” Dr Bianca Fileborn, a senior lecturer in criminology at the University of Melbourne, tells Refinery29 Australia.
I ask her why she thinks stealthing has been predominately left out of our consent and sexual harassment conversations.
“We tend to adhere to narrow understandings of what sexual violence 'is'. In particular, there's a common misconception that sexual violence always involves physical force and coercion, which stealthing does not necessarily involve, given it's typically done without the other person's knowledge. So, stealthing falls outside of stereotypical understandings of what constitutes sexual violence,” says Dr Fileborn. 
In the UK, stealthing is considered to be rape. California is close to securing a bill that would make stealthing a civil offence, which would make it the first state in the US to do so. Back in 2017, a Swiss court upheld a 12-month suspended sentence for a man who engaged in stealthing. Earlier this year, a New Zealand man was sentenced in the country’s first successful prosecution of stealthing.
So where does Australia stand? Other than the ACT, our current laws are largely unclear about whether they protect victim-survivors of stealthing, especially because legislation around sexual offences vary in each state and territory. 
“It's currently uncertain as to whether the removal of a condom without the knowledge or consent of the other person is sufficient to void any consent that was given to the sexual encounter,” explains Dr Fileborn. 

Law reform by itself is not enough but it is an important part of our societal response to this heinous act.

elzabeth lee mla
“Lawmakers have a duty to ensure that our laws reflect what we, as a society, deems unacceptable behaviour,” Lee says. “We need to clarify consent laws to explicitly outlaw stealthing. Law reform by itself is not enough but it is an important part of our societal response to this heinous act.”
Dr Fileborn agrees, but is cautious about what outcomes will actually come to fruition. 
“I think it's important for stealthing to be specified as an action that vitiates consent in legislation, similar to how factors such as being asleep, unconscious or intoxicated are currently approached in most jurisdictions,” she says.
“However, in practice, this type of legislation is unlikely to have a significant impact on victim/survivors in terms of achieving any form of justice in response to their experience. I suspect that stealthing cases would be incredibly difficult to prove to the standard of evidence required in a criminal trial. These cases would typically involve one person's word against another, and would likely encounter the same challenges as other sexual offence cases that hinge on the question of consent.”
“So, while I think there's some value in legislative change in regards to stealthing, we need to recognise the limitations of this and ensure that we continue to advocate for social and cultural change in other ways, such as comprehensive sex and relationships education in schools.”
If you or anyone you know has experienced sexual or domestic violence and is in need of support, please call 1800RESPECT (1800 737 732), the National Sexual Assault Domestic Family Violence Service.

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