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No Criminal Laws in Victoria Expressly Criminalise the Non-Consensual Removal of Condoms During Intercourse

Trigger Warning: This Article mentions and discusses sexual assault

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Article initially written on 29 March 2021, updated 5 November 2021

Last year I wrote my honours thesis largely in lockdown.

The topic: The need for law reform to criminalise “stealthing”; the non-consensual removal of condoms during intercourse.

My decision was made when I came across a startling article published in The Age written by Melissa Cunningham ‘One in Three Women Victim to ‘Stealth’ Condom Removal.’ Cunningham reported the truly disturbing statistics from a study conducted by Monash University at a Melbourne Sexual Health Centre from December 2017 - Approximately one in three women and one in five men had reported being previously ‘stealthed.’ Less than one per cent of respondents reported the incident to police.

I came across this article on Facebook. But what grabbed my attention was what was written in the comments:

  • ‘But isn’t this rape?’

  • ‘There was no consent’

  • This happened to me.’

Attention has recently been drawn to the issue through the highly reported conviction of Julian Assange in 2011 and the paper published by Alexander Brodsky in the Columbia Journal of Gender and Law in 2017, which described the practice as being ‘rape-adjacent.’

Brodsky explained that motivations beyond stealthing perpetrators include ‘increased physical pleasure’ and a ‘thrill from degradation’ of their victims, reporting on incidents of online websites providing a “how-to” stealth. It also appears to be a largely gendered crime - with correlations reported between men who have a history of sexual aggression against women or misogynistic tendencies being more likely to stealth another.

Stealthing victims may have an increased risk of unintended pregnancy and STIs. As discussed by Brodsky, many also experience a betrayal of trust arising from this violation of dignity and autonomy. These feelings may be compounded by the lack of legal clarity surrounding the issue.

At the time of writing my thesis, no law in Australia expressly criminalised stealthing, which meant conviction would be dependent upon interpretation of existing consent laws. However, in October 2021, the Australian Capital Territory became the first jurisdiction in Australia to make stealthing illegal as a circumstance capable of negating consent. It appears that South Australia may be next to follow with a Bill for Stealthing and Consent recently tabled by Parliament.

Without expressly criminalising stealthing, many existing laws do not necessarily capture the gravity or seriousness of the harms. For example, while the Victorian Crimes Act 1958 (Vic) provides an offence for procuring sexual acts by fraud, the offence carries a much lighter offence than other forms of sexual offences. Last year, the Victorian Supreme Court in DPP v Diren [2020] VCC 61 (7 February 2020) sentenced a “stealthing” perpetrator to two years to a community corrections order (CCO) for a period of two years, given his lack of criminal history. A similar pattern was repeated in DPP v Dragojlovic [2020] 1811 (13 November 2020) where the defendant was sentenced to a three year CCO and $10 000 fine for "stealthing" a sex worker. This is a stark contrast to New Zealand, which in April 2021, found a man who removed a condom without a sex worker's consent guilty of rape, sentencing them to three years and nine months in prison.

Without legislative reform, it is necessary to see how the courts address stealthing in Victoria in the context of rape and sexual assault. This will largely depend on the facts and circumstances of the particular case. One such case may be this one - In September 2018, a Melbourne surgeon was charged with rape and sexual assault against a male doctor for allegedly removed a condom without consent. While this case has been delayed by the pandemic, it is set to go to trial in 2022.

Stealthing should be seen as removing consent entirely to sexual intercourse. Consent was freely and voluntarily given to sexual intercourse on the understanding that a condom was to be used. By removing it without the knowledge or consent of the complainant, there is no longer any consent to the activity.

In my thesis, I contended that we need to expand our understanding of how consent is interpreted in Australia, expressly referring to “stealthing” as a circumstance which can negate a person’s consent to sexual activity. This would allow stealthing cases to fall within the scope of more serious offences like sexual assault and rape.

Equally important to securing convictions against perpetrators, a provision that expressly addresses and identifies stealthing would also vindicate the experiences of victims. For example, in the Monash Study it was said that ‘until an act is named as assault it cannot be viewed as such, and cannot be reported or legislated against.’

However, beyond legislative reform or cases coming before the court, it is important to raise awareness about the issue by talking about it to validate the experiences of victims and condemn the practice in society.

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