On October 7, 2021, the Australian Capital Territory (ACT) Legislative Assembly unanimously passed the Crimes (Stealthing) Amendment Bill 2021 (ACT), which was subsequently notified and became the Crimes (Stealthing) Amendment Act 2021 (ACT), with an effective date of October 14, 2021.
The bill, a private member’s bill introduced in April 2021 by Canberra Liberals party leader Elizabeth Lee, amends the Crimes Act 1900 (ACT) by inserting a new paragraph into section 67(1), which provides a nonexhaustive list of grounds on which the consent of a person to sexual intercourse is negated in the context of certain sexual and indecency offenses. The new paragraph (ga) in 67(1) states that such consent is negated if it is caused “by an intentional misrepresentation by the other person about the use of a condom.”
The relevant offenses are “sexual intercourse without consent” (section 54); “sexual intercourse with a young person” (specifically with respect to the defense that the defendant believed on reasonable grounds that the alleged victim was above the age of 10 years and the defendant was not more than two years older, and establishes that the person consented to the sexual intercourse) (section 55(3)(b)); “act of indecency without consent” (section 60); and “acts of indecency with young people” (in relation to the similar defense as stated for section 55) (section 61(3)(b)).
The nonconsensual removal of a condom during sexual intercourse is commonly referred to as “stealthing.” The explanatory statement for the bill states as follows:
According to a recent joint study by the Melbourne Sexual Health Centre and Monash University, one in three women and nearly one in five men in Australia have reported being stealthed.
Stealthing risks both physical and psychological health, including the transmission of sexually transmitted infections and disease, unplanned pregnancies, depression, anxiety, and in some cases post-traumatic stress disorder.
Stealthing would require ‘fresh consent’ for intercourse to continue on a consensual basis after the condom has been removed.
The statement explains that the amendment expressly defines stealthing “as a factor that would negate consent,” and that the “[n]ew paragraph 67 (1) (ga) would ensure that where consent is given on the basis that a condom be used during 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, then the other person’s consent is taken to be negated.”
The ACT government viewed the practice of stealthing as already being illegal under existing law. However, the ACT attorney-general, Shane Rattenbury, has previously said there may be value in “putting this beyond doubt by creating an explicit definition of stealthing.” Furthermore, he stated:
A strong and clear criminal justice response to sexual offending is important, not only for victims and survivors but also the entire community[.]
Put simply, stealthing is rape.
It is important that we have a society-wide culture that understands and promotes sexual safety and consent.
Laws and Decisions on Stealthing in Other Jurisdictions
With the passage of the bill, the ACT became the first Australian jurisdiction to expressly criminalize stealthing. Subsequently, on October 13, 2021, a member of the upper house of the South Australian parliament, Connie Bonaras, introduced a bill that would criminalize stealthing. Similar to the ACT legislation, the bill would amend the Criminal Law Consolidation Act 1935 (SA) to explicitly state that a person’s consent is negated “if it is caused by the misrepresentation by the other person about the use of a condom.”
There is also currently a case involving stealthing before the courts in Victoria that is expected to be heard in 2022. The charges were originally brought in September 2018. Previously, in February 2020, the County Court of Victoria sentenced a different stealthing perpetrator “to a community corrections order for a period of two years, given his lack of criminal history.”
On introducing the ACT bill, Lee referred to a New Zealand court having recently convicted a man of rape after he removed a condom during sex without the women’s consent, saying that this set a new precedent in that country, and that the ACT should also make it clear that stealthing is illegal. The case in New Zealand was decided by a district court jury in March 2021, with the defendant subsequently sentenced to three years and nine months’ imprisonment.
In July 2020, an appeals court in Germany also found a defendant guilty of sexual assault under the German Criminal Code. This was also the ruling in a separate case decided by an appeals court in March 2021. In Switzerland, an appeals court found in 2017 that stealthing did not constitute rape but rather a lesser sexual offense. Subsequently, in two different 2019 decisions, the courts found that such an act was morally reprehensible but did not currently fall under the criminal law.
In addition, on October 7, 2021, the governor of California signed legislation that makes nonconsensual condom removal a civil (rather than criminal) offense, making California the first U.S. state to outlaw stealthing.
