When consent is negated: The ACT’s bid to outlaw stealthing | HerCanberra

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When consent is negated: The ACT’s bid to outlaw stealthing

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Stealthing: the act of a man intentionally and secretly taking off a condom during sex although it had previously been agreed with his sexual partner that a condom will be worn. (Cambridge Dictionary)

Alice (not her real name) has been the victim of stealthing. That is, a casual partner removed his condom while they were in the midst of having sex, without her knowledge and expressly against her wishes. In doing so, he exposed her to potential Sexually Transmitted Infections and the possibility of an unplanned and unwanted pregnancy.

The ramifications of this act have been huge for Alice, a final-year Law student at the Australian National University. Such an intimate betrayal has made her feel worthless and silenced.

And yet, it has happened to Alice on more than one occasion. In fact, it is part of a broader pressure she has experienced from multiple would-be sexual partners to not use condoms “because they say it doesn’t feel as good”. In some cases, Alice has chosen not to have sex, in other cases, after agreeing to use a condom, Alice has been stealthed.

“It is actually very normalised. And many of us have to come to terms with stealthing, because it happens a lot. But it carries with it an added layer of complexity because there is consent there at the start (when sex begins with the condom being worn).”

This is exactly the grey area at the heart of ground-breaking new legislation proposed by ACT Liberal Leader Elizabeth Lee which has been tabled in the Assembly and is likely to be brought on for debate next month, COVID-allowing.

ACT Opposition leader Elizabeth Lee has tabled legislation to outlaw stealthing. Photo by Martin Ollman

Elizabeth, a former lawyer, law lecturer and the Shadow Attorney-General, has drafted a Bill that amends the ACT Crimes Act 1900 to expressly define stealthing as a factor which would negate consent.

A new paragraph would state 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.

This would make the ACT the first state or territory to explicitly outlaw the act of stealthing.

According to research from a recent joint study between the Melbourne Sexual Health Centre and Monash University, one in three women and nearly one in five men in Australia have reported being stealthed.

But broader community understanding of the issue is lagging despite its prevalence, and the very term of stealthing has only emerged in recent years.

Leading academic on the issue and Senior Lecturer in Criminology and Justice, at RMIT University Dr Brianna Chesser said she first heard the term “stealthing” in 2018.

“I had heard of non-consensual condom removal in the context of sexual offending before but had never had the term stealthing linked to that act. I think that the term stealthing is apt in a number of ways, it describes the deception in the act itself but can also be linked to the ‘stealth’ nature of the crime of stealthing, which is still relatively unknown in the community.

RMIT Criminology and Justice academic Dr Brianna Chesser welcomes legislative changes to criminalise stealthing.

Dr Chesser believes that some of the confusion about the legality of stealthing comes from our understanding of the concept of consent itself. In circumstances where an individual has been stealthed, someone has agreed or consented to the sexual act, so they may not even realise that removing a condom changes the conditions of consent.

She is therefore keen to see stealthing explicitly defined across all jurisdictions as a circumstance that voids previously given consent. “This would provide a clear message to the community about the legality of such an action”.

To date, there are very few legal precedents on the act of stealthing and the negation of consent has to be proven in court, rather than automatically assumed.

In Melbourne, a man has been charged with rape in 2018 after allegedly removing a condom without consent, but the trial has been delayed by the pandemic.

Earlier this year a New Zealand man was convicted of rape and sentenced to three years and nine months after stealthing a sex worker.

Elizabeth Lee first began examining the complexities of consent law in her last term in Opposition. The more she researched the more she realised “this is actually an area of consent no jurisdiction given any certainty to…Despite the fact some lawyers think it is covered, the mere fact that there’s no certainty I think is sufficient for legislators to make clear.”

Her anecdotal understanding of the impact of stealthing is that victims undoubtedly feel violated but are often at a loss to understand the magnitude of the wrongdoing, or if in fact, they have any legal protection against what has happened.

“But there is no doubt stealthing is a heinous act that has the potential to have long term impacts on victims. Being exposed to the potential risk of an STI or to an unwanted pregnancy would have life-long impacts, and the whole psychology of being violated in the most vulnerable of moments has huge ramifications psychologically, physically and emotionally.”

For Alice, stealthing has absolutely shaken her trust in men and undermined her sense of sexual agency.

“Any sexual behaviour is risky. Even if you trust and know someone. But it is horrible for that choice of using a condom to be taken away from you. You trust that not wanting to have sex without one means that you won’t, and when they go ahead and do it anyway, you feel your free will has been taken away.”

For her, the introduction of such legislation would be a huge step forward as it would classify stealthing as a crime—both in the minds of victims and perpetrators.

”Legislation to make it a concrete wrong would be the best place to start. And it would start the education and conversation about what is acceptable behaviour and what is an offence.”

Similarly, another ANU student Aline said many victims were not sure where their rights stood, or even that there was a term for what had happened to them, so legislation was the framework which would “set a higher standard of behaviour and shed light on the seriousness of stealthing as a crime”.

Aline felt that “because stealthing has only recently come on the radar of our community, many don’t feel like their experience is valid. Personally, if stealthing has ever come up in conversation it has been brushed off as something we just deal with rather than it being a form of sexual violence. The lack of awareness and education about stealthing I think is key to why it isn’t overly spoken about.”

Yet Aline says there also needs to be realistic expectations about the impact of new legislation on what she says is a widespread practice.

“Sexual assault is a crime and has been for many years, but I wouldn’t say that criminalisation has an effect on potential rapists…We know that sexual violence occurs at very high rates on campus despite the criminal nature of sexual violence. I think criminalisation and legislation is a positive step forward but the change needs to accompanied with broader community and legal change that addresses the barriers that victim-survivors face.”

Aline is a member of The STOP Campaign, a grassroots organisation founded by students at the ANU in response to the high rates of sexual violence occurring on campus.

STOP lead events coordinator Audrey Mims and founder Camille Scholeffel during a Zoom address at the Australian National University.

According to STOP founder Camille Schloeffel, and lead events coordinator Audrey Mims, “the general public have an incredibly limited understanding of consent and the fact that it is enthusiastic and ongoing, and a crucial part of sexual experiences”.

They also believe that reporting stealthing (and any form of sexual violence) currently requires too many hurdles to be overcome and enormous work is required to make current reporting processes “fit-for-purpose for the diverse experiences and needs of victim-survivors who come into contact with the system”.

“We know that legislation won’t be enough to tackle the deep-rooted issues challenging the Canberra community in this space. Enacting legislation in isolation will not be sufficient and there is a need for broader institutional change surrounding the education, awareness and support we provide, especially for victim-survivors.”

The potential for re-traumatisation and fear of personal reputational damage and safety risk is enough to turn victim-survivors away from the reporting process—something the STOP Campaign is working hard to address through their peer-based education initiatives, and their campaign for education and institutional reform.

Elizabeth Lee is under no misapprehensions that her proposed Bill alone will stamp out the crime of stealthing.

“I am absolutely aware of the complexities, difficulties and challenges the system faces and the chronic underreporting of sexual assaults. Law reform on its own is not going to stamp it out, but it is an important step.”

She emphasises that “just because something is difficult to prove or does not have high reporting rates shouldn’t stop us from saying as a community that it should not be legal. Stealthing should be seen as a crime. And this is the place we need to start.”

If this article has brought up any issues for you, please consider reaching out for support

1800RESPECT: 1800 737 732
Canberra Rape Crisis Centre: 02 6247 2525
Domestic Violence Crisis Service ACT: 02 6280 0900
Lifeline: 13 11 14
To learn more about The STOP Campaign, you can visit their website: www.thestopcampaign.org.au




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