Nothing ‘Stealth’ About It - Are Current Criminal Laws Sufficient to Criminalise Stealthing?



In June 2019, The Age published an article by Melissa Cunningham entitled ‘One in Three Women Victim to ‘Stealth’ Condom Removal.’ Sharing the results from a 2017 study conducted by Monash University at a Melbourne Sexual Health Centre, Cunningham reported that one in three women and one in five men had reported being previously ‘stealthed’ by another person. Less than one per cent of respondents reported the incident to police.


Stealthing is the colloquial term used to refer to the non-consensual removal of a condom during sexual intercourse. Stealthing has recently gained academic and media scrutiny following the highly publicised conviction of Julian Assange in 2011 for deliberately breaking a condom which the victim expressly required he put on; and a paper published by Alexander Brodsky in the Columbia Journal of Gender and Law in 2017 describing the practice as being ‘rape-adjacent’ or akin to rape. It was also recently addressed in an episode of Michaela Coel’s acclaimed series "I May Destroy You."


Victims of stealthing are more likely to experience anxiety, depression and PTSD, and be at increased risk of unintended pregnancy and transmission of STIs. In particular, in interviewing stealthing survivors, Brodsky noted that many felt a betrayal of trust and violations of dignity and autonomy. Many of these experiences could be compounded by the fact that victims may not actually be aware that their experience is akin to sexual assault or rape.


Stealthing perpetrators appear to be motivated by the ‘increased physical pleasure’ and ‘thrill from degradation’ of sexual partners, with Brodsky recording incidents of online websites that actually provide a 'how-to' guide for stealthing. Although both men and women can be victims of stealthing, there appears to be a gendered element to the offending - Davies et al. (2014) reported that men with histories of sexual aggression against women and misogynistic tendencies are more likely to engage in stealthing.


There is little legal clarity around the issue of stealthing, as no Australian law expressly criminalises the conduct. Convicting perpetrators is therefore dependent upon interpretation of existing consent laws. Whilst Section 45 the Crimes Act provides an offence for procuring sexual acts by fraud - for which the act of stealthing could be considered to be - the offence carries a much lighter penalty than other sexual offences. For example, in the Victorian Supreme Court case of DPP v Diren [2020] VCC 61 (7 February 2020), a ‘stealthing’ perpetrator was sentenced to a community corrections order for a period of two years, given his lack of criminal history. Overseas, New Zealand’s sentencing of a Wellington man for removing a condom twice during intercourse with a sex worker has set a significant precedent for being their first successful prosecution of stealthing.


In Victoria, whether stealthing amounts to the offence of rape or sexual assault will be dependent upon the facts and circumstances of the particular case. In September 2018, a Melbourne surgeon was charged with rape and sexual assault against a male doctor for removing a condom without consent. Although the trial has been delayed by the pandemic, the courts may soon address this issue.


In my thesis, I supported Brodsky’s contention that it is most appropriate to view stealthing as removing consent entirely to the act of sexual intercourse, because consent was freely and voluntarily given on the understanding it was to occur with the touch of a condom, rather than the skin of the penis. The removal of a condom without the complainant’s knowledge or consent therefore vitiates consent entirely.


In the context of Victoria’s sexual offence laws, I suggested that we need to expand the scope of consent in the Crimes Act by expressly referring to ‘stealthing’ as a circumstance which will 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. Such a reform is being considered by the ACT Legislative Assembly - who are examining a bill which, if enacted, would explicitly state that the intentional misrepresentation about the use of a condom negates a person's consent.


Ensuring that stealthing falls within the scope of existing sexual offences would ensure both that convictions could secured against perpetrators, as well as vindicating the experiences of victims by naming it an act of sexual assault.


Image: Shutterstock

Talani is a final year Bachelor of Laws (Honours) student at Monash University. She is currently tutoring evidence law for the Monash Law Students' Society and serving as a Research Assistant for Jonathan Clough and Asher Flynn in the field of Deepfakes and Image Abuse. She completed her Honours Thesis in the area of Stealthing. Talani hopes to complete a PhD at Monash and (eventually) run a subject examining intersections between pop-culture and the law

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