Stealthing. The word alone means many things. But do you know why it’s a criminal act? We break it down.
This article deals with sexual assault and may be triggering for some readers.
It happens behind closed doors but two thirds of people don’t know what it is.
It impacts the victim’s physical and mental health, often leaving them in a state of distress.
It’s stealthing – the act of deliberately removing a condom before or during sex without the other person’s consent.
And as of March 2023, it is illegal in South Australia.
If you didn’t know what stealthing is, you’re not alone. Research conducted by the Australia Institute in 2022 found 65 per cent of Australians are unfamiliar with the term.
Even among the 35 per cent who said they were familiar with stealthing, only two in five people could identify the correct definition.
With so many Aussies unfamiliar or unsure of what stealthing is, these legal changes not only protect us, but set clear expectations of what’s acceptable and start important conversations.
So, what exactly is the stealthing law?
In South Australia, rape is an offence under the Criminal Law Consolidation Act 1935, and it has a maximum penalty of life in prison.
A person commits rape if they have sexual intercourse with another person who does not consent to sex or has withdrawn their consent.
The changes to the law specify stealthing as a factor negating consent, meaning if you’re found guilty of stealthing you could be convicted of rape.
Stealthing is defined as having occurred if “the person agrees to engage in the activity because of a misrepresentation (whether express or implied) as to the use of a condom during the activity”.
How these changes are a part of a national conversation
As school kids, many of us have awkwardly giggled as we put condoms on bananas. Now we have the language to talk about why it’s so important to keep a condom on and what it means if you don’t.
Kellie Tool, a lecturer at Adelaide Law School, explained to The Post the symbolic value of these legal changes is really important.
“The statute and the prosecutions that will result will make the public aware of the conduct, and the legal consequences will deter and educate about the unacceptability of condom removal during sexual intercourse,” Kellie says.
SA is not the only jurisdiction to criminalise stealthing; the ACT, TAS, NSW, VIC and most recently QLD have also legally recognised this form of abuse.
“The national conversation has shown that the current laws of rape, which have not changed in substance for centuries, no longer reflect modern attitudes and values,” Kellie says.
“We have a much more sophisticated concept of consent and expect people to be much more respectful about gaining consent.”
Is it still stealthing if it’s with my friend with benefits/partner/wife?
Stealthing is a violation that can happen when you’ve consented to protected sex with someone you know.
The new law reforms address this and other misconceptions about consent through jury directions – the instructions given to the jury by the judge.
These directions include that non-consensual sexual activity is not always perpetrated by a stranger and non-consensual activity can still occur between people who know one another, are married or are in an established relationship.
Kellie says this expands the concept of rape in a way that is more respectful of bodily autonomy.
“It will recognise the violation that victim-survivors experience in this situation and prevent defendants from having certain legal arguments available to them to deny that the conduct can constitute rape,” she says.
Having an intimate relationship, such as marriage, with your perpetrator can heighten the barriers to reporting.
“The formal status of marital rape was very unclear until 2012, and social attitudes often meant that rape in marriage was not considered a crime at all or at least was not as serious as other forms of rape,” Kellie says.
Katrina Dee, Director for Health and Recovery Trauma Safety Services (HaRTSS) at the Women’s and Children’s Health Network, agrees we need to break down these myths around consent.
“I think we have moved away from thinking rape only occurs on the street, by a stranger, at night-time with a knife,” Katrina says.
“We know sexual assault occurs in a lot more scenarios than that one, and most people are sexually assaulted by someone they know.”
Stealthing is a health issue as well as a criminal one
HaRTSS offer services such as Yarrow Place, which responds to rape and sexual assault, offering forensic medicals, health checks and evidence-based therapy for people experiencing trauma.
Yarrow Place is available to all people , aged 16 years and over at the time of sexual assault and can be contacted on 1800 817 421.
Katrina says the new laws recognises the complexity of sexual assault and the harm it can do.
“It harms them in the sense of pregnancy risk, sexually transmitted illnesses, or the psychological distress someone may feel after an assault, having to go and get tested and checked.
“It impacts people’s physical health, and their longevity of life is impacted directly by these traumatic events, so we really encourage people to come forward and seek help for their health.”
What else still needs to be done?
The new law will not address all the fundamental problems with prosecuting perpetrators of stealthing.
“Rape is always difficult to prosecute as it relies very strongly on testimony, and the process can be traumatic enough to discourage victim-survivors from testifying,” Kellie says.
Legislative change alone isn’t enough because jury decisions are also affected by social attitudes.
“Education about rape, respect, consent and bodily integrity and autonomy are also critical,” she says.
You can contact 1800RESPECT on 1800 737 732 for 24-hour support.