Stealthing laws are a relatively new phenomenon in respect of sexual assault legislation. It has gained notoriety in recent years but there is still legal ambiguity surrounding stealthing in Australia. The ACT, Tasmania, NSW and Victoria have introduced legislation criminalising stealthing in the last year. A recent review of sexual assault legislation in Queensland recommended criminalising stealthing. Similar reviews are in progress in SA and WA.
What is Stealthing?
Stealthing is the non-consensual removal of a condom during sex without the knowledge of the other person.
Most states in Australia require consent to be explicitly communicated at each stage as well as for each sexual act. This is known as affirmative consent. If this is not obtained, the person who failed to obtain it can be found guilty of a sexual offence. These laws are in place to protect those who may not have the ability to verbally or physically oppose sexual actions as they are happening or those who may freeze in traumatic situations such as non-consensual sex.
Stealthing has been formally criminalised in four Australian jurisdictions under state legislation.
When did stealthing become illegal?
The ACT was the first jurisdiction in Australia to criminalise stealthing in 2021 through the introduction of the Crimes (Stealthing) Amendment Act 2021. After the ACT, Tasmania, NSW and Victoria followed suit, implementing legislation criminalising stealthing in 2022.
The most recent state that criminalised stealthing is South Australia which introduced amendments to include stealthing as a type of sexual assault in 2023.
Stealthing Laws in NSW
Stealthing is a criminal offence in NSW. Section 61HI of the Crimes Act 1900 provides an example that if a person consents to sexual activity with a condom is not, by reason only of that fact, to be taken to consent to sexual activity without a condom.
Affirmative sexual consent laws came into effect in NSW in 2022 and legislated the requirement for there to be free, informed and voluntary agreement to participate in a sexual act.
Consent should not be presumed, meaning that consent to sexual activity is only valid if it has been freely and voluntarily communicated.
A person can also withdraw consent verbally or physically anytime after the initial consent was given. Not verbally or physically resisting sexual activity does not by itself amount to consent.
If a person consents to one type of sexual activity, it cannot be assumed that they consent to another type of sexual activity. Section 61HI of the Crimes Act 1900 provides the example that if a person consents to sexual activity with a condom is not, by reason only of that fact, to be taken to consent to sexual activity without a condom.
Sexual assault consent laws are complex and can be difficult to understand. If you are in a situation where there is an allegation that you did not properly obtain consent, it is crucial that you immediately obtain legal advice from a specialist sexual assault lawyer.
Stealthing Laws in ACT
Stealthing is illegal in the Australian Capital Territory under the Crimes (Stealthing) Amendment Act 2021. The Act made it illegal to remove a condom during sex or not wear a condom unless it was previously agreed upon.
The ACT parliament added Section 67(1)(j) of the Crimes Act 1900 which states that an individual does not provide free and voluntary consent if he or she, "participated in the act because of an intentional misrepresentation by another person about the use of a condom."
Stealthing Laws in Victoria
Stealthing is a criminal offence in Victoria under the Victorian Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022. Subdivision 1 of this Bill introduces a preliminary amendment regarding using, removing or tampering with condoms. This Bill also contains proposed amendments to Section 36 of the Crimes Act 1958, inserting additional terms to reflect that tampering with a condom or, failing to wear a condom when it was agreed that one would be worn, is also a breach of consent and amounts to sexual assault.
Stealthing Laws in Tasmania
Tasmania has criminalised stealthing following the Criminal Code Amendment Bill 2022 (Tas). This Bill amended the definition of consent in the Criminal Code Act 1924 (Tas) to explicitly include that a person does not give consent to sexual activity if that consent was based on the use of a condom and the other person does not use a condom, tampers with the condom or removes the condom before or during the sexual act.
Stealthing Laws in South Australia
Stealthing has been criminalised in South Australia as of March 2023 through the Statutes Amendment (Stealthing and Consent) Bill 2022.
This Bill aimed to amend the existing provisions in South Australia. It set out that consent would be invalid if it was obtained as a result of a, "misrepresentation (whether express or implied) as to the use of a condom during the activity."
Stealthing Laws in Queensland
Queensland has not made stealthing explicitly illegal. However, the second edition of the Queensland Women's Safety and Justice Taskforce Hear her voice report published in July 2022, has recommended that legislation should be amended to include a definition of consent which will criminalise stealthing in a similar fashion to NSW legislation.
Stealthing Laws in Western Australia
Western Australia has not made stealthing a criminal offence. In February of 2022, the WA Attorney General tasked the Law Reform Commission of Western Australia with conducting a review of the existing sexual assault laws and the legal definition of consent. The Review will then consider whether it is necessary to adopt an affirmative model of consent within state legislation.
It will also consider how mistakes and knowledge of consent should be applied in sexual assault cases and whether a list of factors which vitiate consent should be added (including stealthing).
How to prove stealthing
To prove an offence of stealthing, the prosecution must establish the following elements beyond reasonable doubt:
- A defendant has had sexual intercourse with another person;
- The sexual intercourse occurred without the consent of that person;
- The defendant knew that the person did not consent.
Section 61HA of the Crimes Act 1900 (NSW) defines sexual intercourse as:
- Any penetration to any extent of the genitalia or anus of a person by any part of the body or any object manipulated by the defendant; or
- If any part of the penis or vagina is in contact with the inside of a person's mouth.
It is important to note that if the penetration is carried out solely for the purpose of proper medical or hygienic purposes it is not defined as sexual intercourse. If the prosecution is able to prove that the allegation falls within any of these categories then the element for sexual intercourse is satisfied.
The second element, consent, is the most contested element in any sexual assault case. The definition of consent appears in Section 61HE of the Crimes Act 1900 (NSW). This section reflects that a person consents to sexual activity with another person only if they "freely and voluntarily agree to sexual activity." This means that any consent which is obtained under duress, if the person is unconscious, if the consent is retracted after being granted etc. is deemed to be invalid and any sexual intercourse after this will be considered sexual assault.
The third and final element requires the prosecution to prove that the accused person had knowledge that the victim did not consent. Knowledge, when referring to sexual assault offences is satisfied if the prosecution can prove one of the following:
- The accused has actual knowledge that the victim was not consenting – actual knowledge refers to circumstances where the victim explicitly asked the accused to stop or physically protested the intercourse and the accused knew that the intercourse was no longer consensual yet they proceeded to continue
- The accused was reckless to the possibility that the victim is not consenting – recklessness here refers to the accused knowing that there is a possibility that the victim is not consenting, yet proceeding with the intercourse either way. An example of this is if the victim is intoxicated and the accused knew that there is a possibility that that person may not consent to the intercourse because of their intoxication
- The accused had no reasonable grounds to believe that the victim gave consent – an example of this is that the victim was unconscious or asleep and the accused had no reason to believe that they would have consented to the intercourse if they had been conscious or awake.
The prosecution must prove all three elements beyond a reasonable doubt in order for sexual assault to be established. Stealthing can be discussed in more depth within second and third elements where consent and knowledge of consent are questioned. The maximum penalty for sexual assault once it has been proven is 14 years, with a standard non-parole period of 7 years.
How common is stealthing?
The Australian Institute surveyed 10 001 Australians in July 2022 to collect data about their familiarity with the term stealthing and their attitude towards criminalising stealthing in all Australian states and territories.
The results of this survey revealed that 65% of Australians were not familiar with the term stealthing.
For the group which was familiar with stealthing, 38% of men were more likely to say they were familiar with the term compared for 31% female respondents. This survey also revealed that a larger number of younger people aged 18-29 were familiar compared to the older population.
Another survey conducted by Monash University using attendees of a sexual health clinic in Melbourne in 2018 revealed that 32% of women and 19% of men who have had intercourse with a man had experienced stealthing. It revealed that female sex workers were three times more likely to have experienced stealthing compared to other women. The Monash study revealed that only 1% of the stealthing is reported to the police, leaving stealthing a largely unreported crime.
The NSW government is in the process of introducing stealthing and its dangers as a part of the high school sex education syllabus in an effort to raise more awareness of the term. This will also allow the students to learn about the dangerous repercussions of stealthing including possible criminal consequences.
Female Stealthing
Female stealthing refers to when a female tampers with a condom without the victim's consent. This usually means altering the condom itself by poking holes in it causing the transfer of sexually transmitted diseases or pregnancy. Female stealthing is a crime in NSW, Tasmania, ACT, Victoria and South Australia.
Penalty for Stealthing
Adrian Perez is the first person to be sentenced under the new stealthing laws in NSW. The 21-year-old pleaded guilty to one count of sexual intercourse without consent after admitting to removing his condom during a consensual BDSM session with a sex worker in April 2022.
The complainant had agreed to be tied up, gagged and blindfolded during the session. She had also explicitly communicated to Mr Perez that a condom would be non-negotiable. Mr Perez agreed to use a condom however he removed it without the woman's consent or knowledge and continued to have intercourse.
The sex worker noticed the condom on a chair after Mr Perez left and confronted him the next day when he admitted to removing the condom without telling her. The victim reported the incident of sexual assault to the police and went to Wollongong Hospital for a sexual assault investigation kit. The kit revealed that there was Mr Perez's DNA found inside the woman and on the condom. He was tried in 2023 and sentenced to 2 years in jail with a non-parole period of 14 months.
The case highlights the importance of being aware of the laws and seeking legal advice if you are in a situation where this issue may arise. You can contact Astor Legal on (02) 7804 2823 or email us at info@astorlegal.com.au to speak to a specialist criminal defence lawyer.
