This post discusses sexual assault.

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By now you’ve probably heard of ‘stealthing’, the revolting name given to the act of removing a condom during sex without informing your partner.

Over the past month, dozens of articles have appeared to map this “disturbing new sex trend” (which, for what it’s worth is neither “new” nor a “trend”), culminating in an interview published yesterday on the ABC’s Hack website with a man, Brendan*, who admits to stealthing “most of the time” during intercourse with casual sex partners.

The piece, in which Hack provides a bizarre and gratuitous forum for a predator to gloat over his assaults largely unchallenged, has ruffled more than a few feathers online.

Like any issue relating to consent, the discourse around stealthing has a lot of people very fired up, and for good reason. A vast portion of the discussion is devoted to trying to ethically classify stealthing (which is a nonconsensual act): is stealthing just unsafe sex, or is it assault? This is precisely the wrong question to be asking. Not only it is unproductive, it’s also extremely dangerous.

A Blindspot In The Law

Here’s the problem: regardless of how our culture might classify stealthing (and, for what it’s worth, a majority of people agree the act is assault), there is no provision in the Crimes Act that technically makes stealthing illegal — yet.

It’s another case, and there are many, of our laws lagging behind our social behaviours. And it needs to be rectified, STAT, before this debate does irretrievable harm to our discourse around consent, and to victims of sexual violence.

The internet has recently been flooded with upsetting stories from women and men who have been stealthed; these accounts sound horrifyingly similar to other personal accounts of sexual violence. These individuals describe the “self-loathing”, of feeling “unclean” or “unsafe” from these encounters. And many of them have the same thing in common, a question of “is what happened to me rape?”

“The less confident victims feel about viewing their assault as a crime, the more reluctant they will be to come forward”

This uncertainty is not only tragic but also dangerous. The less confident victims feel about viewing their assault as a crime, the more reluctant they will be to come forward and press charges.

This is potentially what has happened in the case of this ‘stealthing’: victims of the act have felt uncertain about the ethics and legality around what has been perpetrated against them, and so have not come forward to seek help. No one has pressed charges, and therefore no cases have been brought before the courts (that we know of). So the act of ‘stealthing’ appears to be a”grey area” (read: legal, not ethical), one that has not been tested by the court’s understanding of “free and voluntary agreement” to engage in a particular kind of sex act.

The good news is that, in other parts of the world at least, this issue is serious enough to have hit the desks of some influential lawmakers. Last year a landmark sexual assault conviction was handed down to a man who had removed his condom during sex without obtaining consent from his partner. The victim, fearing unwanted pregnancy or diseases from the assault, pressed charges, and the man was eventually convicted of “defilement”.

This week in California, State Assemblywoman Cristina Garcia introduced legislation to legally define stealthing as rape. “Let me be clear, when a man removes his condom without consent during sex, when that consent is no longer there, that’s rape,” she said. “Anything done to our bodies without our consent is rape.”

There’s movement in some parts of the world but, in Australia, there is still no legal precedent for prosecuting stealthing as assault, and there is no provision that covers it in the Crimes Act (the Crimes Act in each state and territory is a little different, but none of them cover in-depth what is and isn’t considered to be “consensual sex”).

But let’s be clear about this: there is no precedent simply because no women have felt comfortable pressing charges against a sexual partner for stealthing, and because no one has called for an amendment to the Crimes Act to properly define and include it as an act of assault. Just because the law is behind, doesn’t mean stealthing is ok.

Asking All The Wrong Questions

So many news outlets are still asking the question “Is stealthing assault?”, without realising that’s the wrong question to ask. [Ed note: Junkee has previously put this question to politicians and legal professionals, in an attempt to understand what’s covered in the current Crimes Act.]

Of course it’s assault; it’s sex with another person without their informed consent. That is assault. The real question isn’t “is this wrong?” it’s “when is legislation going to catch up to culture, and turn this wrongful act into a crime?”

A good portion of the population is ok with violating a woman’s body. We don’t need a vox pop on that.

The way we talk about consent is extremely sensitive and highly influential in our society. Referring to things as a “consent grey area”, or asking “is XX assault?” invites debate and discussion from the public about the validity of a victim’s assault claim, which is neither progressive nor productive to the discourse around consent.

Sexual assault is rampant in our society; the stats have it that around one in four women will be sexually assaulted in her lifetime. The high proliferation of this act would tend to indicate that a good portion of the population is ok with violating a woman’s body. We don’t need a vox pop on that.

Playing devil’s advocate with a person’s right to consent is called “rape culture” (creating a space in which the idea of rape is met with ambivalence or even acceptance). It’s worth remembering that, historically, sexual assault and rape were defined as “property offences“, because women were considered to be the property of men. This meant that consent was not prescient in any prosecution of assault, and that a woman’s husband was protected by “marital immunity”.

Rape legislation has certainly advanced since that time, but the process has been slow and painful. Marital immunity to rape was only abolished in Australia in the 1980s, for example. The law can lag desperately behind social advances.

Rape is a confusing and complicated thing to legislate and prosecute. This is, for better or worse, why there is often a big push towards “prevention” tactics rather than legislation changes.

Because consent is often difficult to prove, and because there is a history of mistrust of victims in the courts, it’s easier for organisations to recommend ways to “prevent” assault (like carrying out proper sexual education, including clarifying consent and respect in sex, for young people) than it is for them to fix the problem in our arduous court system.

So conducting the equivalent of a national survey on the ethics of stealthing is the exact opposite of a useful thing to do. Prominent minds in the law agree that stealthing is a nonconsensual sex act, and therefore a form of assault. We don’t need to be coy or ambivalent about it in the media. We don’t need to invite more “grey areas” to an already convoluted discourse.

A Forum For A Predator

This brings me to the Hack interview with self-confessed stealther “Brendan*”. And here we are again at my favourite topic of discussion: providing a platform for rapists to revel in their rapes.

Hack’s Tom Tilley spoke to Brendan* about stealthing, which Brendan* admits, unfazed, he does “most of the time”. Brendan* tells Tilley that he usually stealths when someone asks him to put on a condom”, meaning he knowingly violates his partner’s express wishes to have sex a particular way. The interview, a soft-ball if ever I’ve seen one, involved Tilley giving Brendan* space to essentially detail his assaults on women in-depth.

The piece is a chilling read, not just because of the virtual column inches devoted to justifying nonconsensual sex. The descriptions this man gives of his encounters are also truly sickening to read. When Tilley asks how long into sex Brendan* begins ‘stealthing’, he replies, “I don’t know. Pull it out, take it off, put it back in. Everyone’s happy.”

There’s so much to unpack here. First, if this was Tilley discussing a different kind of rape in-depth with a rapist, the article would be considered unpublishable. My heart aches for the women on whom this has been practised without their knowledge or consent. Second, there’s no challenging that line, particularly the highly questionable comment “everyone’s happy”. Tilley does not then ask, “How can they be happy if they’re not aware what’s happening to them?” He simply moves on to his next question.

Later, Tilley asks Brendan* if women are ever angry on discovering he has removed the condom. “No one’s ever angry but if someone asks me to put it back on I’ll put it back on for sure. That’s fair.”

We are stripping away the tools that victims need to speak out against this vile behaviour.

The one useful aspect of this detrimental piece is that it highlights how desperately we need action from government and law enforcement bodies. Clearly Brendan* (and, no doubt, many others) see no ethical quandry here — it’s all “fair” unless they get caught. Worse still, the women on whom this act is visited do not yet have the language to speak up and identify what is happening to them: sex without their informed consent, rape.

Our game of devil’s advocate, our “grey areas” are disempowering women and men from protecting themselves against grievous bodily harm, the violation of their bodies without their knowledge or consent.

By questioning the ethics of “stealthing” as though it is merely the centre of a balanced debate, by giving a predator space to state his belief that what he is doing is “fair”, we are stripping away the tools that victims need to speak out against this vile behaviour. We are damning them with our ambivalence.

Where To From Here?

The upside, if there is one, to this outbreak of hideous debate means that, perhaps, something will finally be done to help protect victims from ‘stealthing’.

I said before that this is not “new”, or a “trend”, and it’s true. Though I have never been ‘stealthed’, I’ve spoken to close to a dozen people in the past 24 hours who have been, or who have counselled a friend through the experience. This has been happening for yonks. It’s standard sexual practice for men like Brendan* and, as he attests, most of his mates.

The study that began the recent discussion around stealthing explains, “While one can imagine a range of motivations for ‘stealthers’ — increased physical pleasure, a thrill from degradation — online discussions suggest offenders and their defenders justify their actions as a natural male instinct and natural male right”.

This is horrific to contemplate, and only increases the urgency we should feel to end this ambivalence and act. The only way to reduce this behaviour is to protect ‘stealthing’ victims via the law; we’re doing it with revenge porn, and this is just another issue where our legal system needs to catch up to our contemporary culture.

We must ensure that future victims are not damned to silence and self-loathing because of our improperly handled “legal grey areas”.

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Matilda Dixon-Smith is Junkee’s Staff Writer. She tweets at @mdixonsmith.