The Australian Capital Territory has set a legal precedent by becoming the first jurisdiction in Australia – and one of just a few in the world – to outlaw the act of “stealthing”, or the non-consensual removal of a condom during sex.
We cannot wait for cases to come before courts before stealthing is specifically outlawed – we need to act proactively and send a clear message to the community that this behaviour is unacceptable and a crime.
How prevalent is stealthing?
Stealthing is not a new issue in the community, but it has only recently come to the attention of lawmakers in many countries.
In the same year, Triple J’s Hack program in Australia shared stories from both stealthing survivors and perpetrators. Stealthing has also been depicted recently on the screen, in Michaela Coel’s television series I May Destroy You.
Recent studies suggest stealthing affects more members of our community than we might think. A 2018 study by Monash University and the Melbourne Sexual Health Centre surveyed 2,000 people and found one in three women, and almost one in five men who have sex with men, had experienced stealthing.
A 2019 paper published in the National Library of Medicine in the US found 12% of women aged 21 to 30 reported an experience with stealthing.
Another American study of men between the ages of 21 and 30 found that 10% had non-consensually removed a condom during sex. Those men admitted having done so, on average, three to four times in their lives.
Stealthing cases before the courts
These countries, however, have fallen short of specifically outlawing stealthing in legislation.
There is a case involving stealthing currently before the courts in Victoria, but it has been significantly delayed by COVID-19 and will not be heard until 2022.
It was hoped this case would set a legal precedent and ultimately lead to a change to the state’s sex crimes law. However, parliament is unlikely to look at changing any laws until the case is adjudicated.
California takes a different approach
California’s new law, which also passed last week, is the first in the US to specifically outlaw stealthing. This law also provides a persuasive precedent for other states and countries to follow.
It would not, however, make stealthing a crime that could result in jail time. Assemblywoman Cristina Garcia has failed on two previous occasions to pass a law criminalising the act.
The difficulty in passing stealthing laws reflects a general reluctance to make the act a criminal offence. US legal commentators said stealthing could already be considered “misdemeanor sexual battery” in California, even though it isn’t explicitly mentioned in the state’s criminal code.
The reluctance appears to come from the potential difficulties of legally proving an intentional act of stealthing. Importantly, though, legal analysts acknowledged that stealthing was rarely prosecuted in California under the state’s old misdemeanor laws – indicating the need for further legislative clarity.
I think law, at its best, can express a community norm and how we should treat each other. I do think a lot of survivors would find affirmation in the fact that this state legislature agreed what happened to them was wrong.
- ^ becoming the first jurisdiction in Australia (www.canberratimes.com.au)
- ^ ACT’s amended Crimes Act (www.google.com.au)
- ^ said (www.theaustralian.com.au)
- ^ “sort-of” rape (www.theguardian.com)
- ^ rape-adjacent (www.nhregister.com)
- ^ survivors (www.abc.net.au)
- ^ perpetrators (www.abc.net.au)
- ^ I May Destroy You (www.abc.net.au)
- ^ harm (www.tandfonline.com)
- ^ 2018 study (www.researchgate.net)
- ^ 2019 paper published in the National Library of Medicine (pubmed.ncbi.nlm.nih.gov)
- ^ American study (pubmed.ncbi.nlm.nih.gov)
- ^ Rape, sexual assault and sexual harassment: what’s the difference? (theconversation.com)
- ^ New Zealand (theconversation.com)
- ^ Germany (edition.cnn.com)
- ^ Switzerland (www.abc.net.au)
- ^ United Kingdom (www.bbc.com)
- ^ has been much debate (www.sbs.com.au)
- ^ nature of the act (www.lawreform.justice.nsw.gov.au)
- ^ legal experts (www.tandfonline.com)
- ^ Case in Victoria could set new legal precedent for stealthing, or removing condom during sex (theconversation.com)
- ^ new law (www.npr.org)
- ^ allowing victims (www.washingtonpost.com)
- ^ difficulty in passing stealthing laws (www.latimes.com)
- ^ US legal commentators (apnews.com)
- ^ legal analysts (apnews.com)
- ^ put it (www.washingtonpost.com)