South Australia Outlaws Stealthing With Life Imprisonment Penalty — How Does The Rest Of Australia Measure Up?

South Australia is set to be the next jurisdiction to criminalise stealthing — but in a groundbreaking first for our country, perpetrators may be looking at a life imprisonment penalty if found guilty.

'Stealthing' is a form of contraceptive sabotage where someone removes a condom during sex without their partner’s knowledge or consent. It’s a form of nonconsensual sex because it invalidates the consent terms previously given. According to a 2019 study, 12% of young women say that they’ve experienced it, and another study from the same year revealed that 10% of young men admit to doing it.

Just last week, the bill to outlaw stealthing passed in South Australia's parliament's upper house and is now projected to pass the lower house.

"Stealthing is a repugnant, appalling thing to do to any person. It should have been criminalised years ago," says SA Best MP Connie Bonaros, who introduced the bill.

Consent goes much further than the clinical ‘no means no’ slogan we were taught. Abuse comes in many insidious forms, including workplace sexual harassment, cohesive control, grooming, love bombing... the list goes on. 

“[Stealthing] is a heinous act which negates consent,” Elizabeth Lee MLA, Leader of the Canberra Liberals tells Refinery29 Australia. “Sex without consent is sexual assault and sexual assault is a crime.”

The ACT became the first jurisdiction to criminalise stealthing in Australia. In October 2021, the new legislation introduced by Lee passed unanimously in the ACT Legislative Assembly. The bill will not just make stealthing illegal, but also not include not using a condom at all after consent has been given.

"Instead of waiting until the victim comes forward, and the case is taken through the courts to determine, without doubt, that stealthing is a crime, I was drawn as a legislator to make sure that our laws put this beyond doubt,” she told the Legislative Assembly.

Earlier this year in May, Tasmania also outlawed stealthing, with its Criminal Code reflecting the fact that the act is considered rape. This means that the maximum sentence for convicted perpetrators is 21 years in jail.

In June this year, New South Wales' reforms "strengthen laws to confirm that consent can be withdrawn, and that if someone consents to one sexual act, it doesn’t mean they’ve consented to other sexual act".

In November last year, Victoria's state government announced that it would amend laws to make it explicit that stealthing is a crime. In September this year, this reform began to come into effect.

So where does the rest of Australia stand? As Chanel Contos points out, there are three jurisdictions left that are yet to criminalise stealthing — Queensland, the Northern Territory and Western Australia.

“Until recently, we lacked the language to really articulate non-consensual condom removal as a form of harm. It's very hard to discuss something without having the language to do so,” Dr Bianca Fileborn, a senior lecturer in criminology at the University of Melbourne, tells Refinery29 Australia.

I ask her why she thinks stealthing has been, for the most part, left out of our conversations about consent and sexual harassment.

“We tend to adhere to narrow understandings of what sexual violence 'is'. In particular, there's a common misconception that sexual violence always involves physical force and coercion, which stealthing does not necessarily involve, given it's typically done without the other person's knowledge. So, stealthing falls outside of stereotypical understandings of what constitutes sexual violence,” says Dr Fileborn. 

In the UK, stealthing is considered to be rape. California has secured a bill that has made stealthing a civil offence, the first state in the US to do so. Back in 2017, a Swiss court upheld a 12-month suspended sentence for a man who engaged in stealthing. Last year, a New Zealand man was sentenced in the country’s first successful prosecution of stealthing.

“It's currently uncertain as to whether the removal of a condom without the knowledge or consent of the other person is sufficient to void any consent that was given to the sexual encounter,” explains Dr Fileborn. 

“Lawmakers have a duty to ensure that our laws reflect what we, as a society, deems unacceptable behaviour,” Lee says. “We need to clarify consent laws to explicitly outlaw stealthing. Law reform by itself is not enough but it is an important part of our societal response to this heinous act.”

Dr Fileborn agrees, but is cautious about what outcomes will actually come to fruition. 

“I think it's important for stealthing to be specified as an action that vitiates consent in legislation, similar to how factors such as being asleep, unconscious or intoxicated are currently approached in most jurisdictions,” she says.

“However, in practice, this type of legislation is unlikely to have a significant impact on victim/survivors in terms of achieving any form of justice in response to their experience. I suspect that stealthing cases would be incredibly difficult to prove to the standard of evidence required in a criminal trial. These cases would typically involve one person's word against another, and would likely encounter the same challenges as other sexual offence cases that hinge on the question of consent.”

“So, while I think there's some value in legislative change in regards to stealthing, we need to recognise the limitations of this and ensure that we continue to advocate for social and cultural change in other ways, such as comprehensive sex and relationships education in schools.”