Criminal Law

By Satomi Hamon


The new ACT ‘stealthing’ law – is it necessary?

Stealthing is the non-consensual removal, or non-use, of a condom during sex.

Stealthing is considered sexual assault by many legal and sexual violence experts because it turns a consensual act into a non-consensual one. The consequences of stealthing can be serious, including unwanted pregnancy, sexually transmitted infections and negative psychological outcomes.

There has been much debate in the past few years over whether existing Australian sex crimes laws include an act of stealthing or if it needs to be specifically written into the law. Earlier this month, the ACT became the first jurisdiction in Australia to specifically outlaw the act of stealthing.

Consent is, and was prior to the new stealthing law, considered negated under the ACT Crimes Act if that consent was caused “by a fraudulent misrepresentation of any fact made by the other person, or by a third person to the knowledge of the other person.” This section arguably covers an act of stealthing.

Liberals’ leader Elizabeth Lee, who introduced the new ACT stealthing law, said the legislation mentioned above would broadly capture the practice but it needed to be made clear stealthing was illegal. ‘Whilst there is a broad general provision which talks about fraudulent misrepresentation, it doesn’t mention stealthing specifically. And it is such a broad provision that there is concern that something like stealthing might not be captured,’ Ms Lee said. As a result of the new law, consent is considered negated under the ACT Crimes Act if that consent was caused “by an intentional misrepresentation by the other person about the use of a condom”.

A prosecution for stealthing under existing Australian sex crimes laws in other jurisdictions is yet to be tested. There is a case currently before the courts in Victoria, but it has been significantly delayed by COVID-19 and will not be heard until 2022.

Despite acts of stealthing not historically coming before Australian courts, research shows the practice is not uncommon. In Australia, one in three women and one in five men, who took part in research with Monash University in 2018, said they had been stealthed. Only one per cent of respondents in that study who had been stealthed went to the police.

Women’s rights advocates argue clear laws will empower those who have experienced stealthing to come forward and could also help educate the wider community about what is acceptable and what is not. It is further argued the addition of specific laws will assist police and prosecutors to be quite clear about the legal status of stealthing.

Whilst an act of stealthing may have been successfully prosecuted in the ACT prior to the new legislation, the amendment provides clarity and awareness to the illegality of the act.