This post discusses sexual assault.

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A study published in the Columbia Journal of Gender and Law last month has thrown the concept of ‘stealthing’ into the public spotlight. The study’s author, Alexandra Brodsky, describes the act as “nonconsensual condom removal during sexual intercourse”.

A flurry of articles in the past couple of weeks have described stealthing as a “disturbing new sex trend” and an “alarming new sex trend likened to rape”. Others argued “‘stealthing’ is sexual assault, not a sex trend”.

The original study suggested potential law reforms to “reflect better the harms wrought by nonconsensual condom removal” within a US legal context. But what about here in Australia? Is the act of removing a condom midway through sexual intercourse legally considered sexual assault?

A story on triple j’s Hack yesterday contrasted the opinion of a legal expert and the police. NSW Law Society president Pauline Wright told the program that “stealthing is essentially a form of sexual assault because there is no consent”. But according to the NSW Police, “there’s nothing in the the Crimes Act relating to removing a condom during sex without knowledge of the other party, but it is definitely dangerous.”

So who’s right? And if ‘stealthing’ isn’t legally considered sexual assault, should the law be changed?

How Does Australian Sexual Assault Law Work?

When discussing laws around sexual assault in Australia it’s important to understand that each state and territory has a slightly different definition of sexual assault and consent. However, in most jurisdictions, consent is defined as “free and voluntary agreement” to engage in a particular kind of intercourse. According to the law, just because someone has consented to sex at one particular point in time (or for one kind of sexual act) that doesn’t mean they have consented to sex on future occasions.

So where does this leave nonconsensual condom removal? Dr Annie Cossins is a professor of law and criminology at the University of New South Wales. She was a member of the NSW Criminal Justice and Sexual Offences Taskforce and has advised numerous governments on reforms to sexual assault law. She told Junkee that “it is a real grey area”.

“The Crimes Act doesn’t deal specifically with all the things people do or don’t do that could amount to a lack of consent,” she said. “It’s contextual, so a jury or a judge can only determine whether free and voluntary agreement occurred, not by looking at what they would do, but by looking at what this particular couple did.”

Dr Cossins said that it was hard to determine whether something like nonconsensual condom removal could be considered a crime without looking at previous cases. There’s no record of a case involving ‘stealthing’ being prosecuted in Australian courts but Cossins said that doesn’t mean it hadn’t happened.

“We only become aware of cases once they go on appeal,” she said. “What happens at trial and the transcript of the proceedings is only available to the parties involved.”

But despite the lack of clear legal precedent, Cossins told Junkee that there’s a strong argument that ‘stealthing’ would be considered sexual assault, depending on the circumstances.

“The law should be capable of dealing with this.”

“If someone has consented to vaginal intercourse but not anything else, and another kind of intercourse occurs, then it’s rape,” she said. “Similarly, if a person says ‘sure we’ll have sex but you have to wear a condom’ and then if that condom is removed you have to query whether that person consented to it”.

She also thinks the issue might be taken more seriously by modern juries because the public knows more about the harm that can be caused by sexually transmitted infections. She did, however, add: “sexual assault cases are very, very difficult for juries because they have to decide on the issue of consent often in situations when there has been no discussion between parties.”

Dr Arlie Loughnan is an associate professor at the University of Sydney’s law school. She told Junkee that “while [nonconsensual condom removing] hasn’t been tested in court, there might be a chance that it could [be defined as sexual assault] because the way the law works is to determine consent in all the circumstances.”

She agreed with Dr Cossins that the issue of determining whether consent was obtained is complex. “The reality is there’s rarely an explicit dialogue between people,” she said. “Courts are always dealing with much more implicit and ambiguous situations where people understood each other to mean certain things.”

In January, a Swiss man was convicted of rape after removing his condom during sex. While Swiss legal precedents don’t have any formal impact on Australian courts, Dr Loughnan said it “may signify a public desirability for accountability in this regard.”

“I do think that the courts are very good at examining these complex cases,” she said. “Something like this should be something the law is capable of dealing with.”

Both Cossins and Loughnan were open to a policy discussion looking at potential reforms and clarifications to existing law surrounding sexual assault.

Should The Law Be Changed?

Because criminal law is largely the domain of state governments, responsibility for the laws surrounding sexual assault fall within the domain of state attorneys-general. Junkee has contacted numerous state attorneys-general inquiring as to whether they believe the laws are fine as they are or need updating to reflect current societal values. We’ll keep you posted on their responses.

Federal Labor MP Terri Butler is a prominent advocate for women’s rights. In 2015, she co-sponsored legislation to ban so-called “revenge porn”. She told Junkee that, “I am no criminal lawyer but I would think that if consent is conditional on condom use then secret removal would obviate that consent.

“I suspect this is largely a matter for state colleagues given the criminal nature of the issue. I would say though that it speaks to the same issues of gender inequality and a lack of respect for women that arise in relation to gendered violence more broadly.”

The Australian Greens Deputy Leader and spokesperson for women, Larissa Waters, said that “stealthing is wrong, and it’s rape. Consent is crucial, and that includes whether or not your partner is using protection.”

“Just because there hasn’t been a test case doesn’t mean it’s not illegal,” she told Junkee. “If the law needs to change to clarify this, states and territories need to act immediately”.

Of course the letter of the law isn’t the only barrier to people seeking justice. According to the Australian Institute of Family Studies, 85 percent of sexual assaults never come to the attention of the criminal justice system. Less than 20 percent of official complaints result in prosecutions being initiated. Victims have frequently discussed the harrowing experience of telling their stories to juries and facing cross-examination.

The issue of ‘stealthing’ and its ambiguity under Australian law seems like an opportunity to examine not just our criminal code, but the the system built around it, including the police and courts. Even if the law is amended to better reflect community expectations, that’s no guarantee victims will see justice.

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If you or someone you know is impacted by sexual assault call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au. In an emergency, call 000.

Men can access anonymous confidential telephone counselling to help to stop using violent and controlling behaviour through the Men’s Referral Service on 1300 766 491.

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Osman Faruqi is Junkee’s News and Politics Editor. You can follow him on Twitter at @oz_f.

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Feature image via Planned Parenthood