Stealthing: Is removing a condom whilst having sex considered rape?

Stealthing: Is removing a condom whilst having sex considered rape?

Up until May 2017 there was no legal precedent in Australia criminalising the act of taking off a condom during sexual intercourse. However, since then much controversy has erupted over the practice of ‘stealthing.’ A case involving a young man whose partner knowingly removed a condom prior to ejaculation when his partner had explicitly told him he wanted a condom used is currently under investigation as a sexual assault.

Stealthing is the practice of a man removing a condom during sexual intercourse without the knowledge or consent of his partner.

Alexandra Brodsky, an author who published an article in the Columbia Journal of Gender and Law on the topic describes stealthing as “rape adjacent” or “next to or connected to rape.”

Dr Bianca Fileborn, a criminology professor at the University of NSW, said a stealthing case has yet to be undertaken in an Australian court. In contrast, in Sweden removing a condom without consent is considered rape and is against the law.

Legally, stealthing is still a murky legal area in Australia. There is nothing in the Crimes Act that explicitly states removing a condom during sex is a crime. However, critics argue that if sexual consent is given on the basis that the male wear a condom, then if the condom is removed there is potential for consent to be withdrawn as well. Sex without consent is a crime.

As Sex Education Australia co-founder Jenny Ackland argues, consent needs to be mutual and ongoing throughout intercourse saying if someone consents to sexual intercourse with a condom and it is removed without the knowledge of one’s partner, it voids the consent and thus becomes a sexual assault.

Victoria Police Sexual Crimes Squad spokesperson says “removal of a condom during sex without consent could be considered rape. However, all the facts would need to be considered. In Victoria removing a condom during sex could also lead to criminal charges for a breach of contract. Lina Howlett, a NSW sex crimes squad commander agrees. She says “sex turns into assault when consent is not given or [is] withdrawn.”

Some suggest that a new offence addressing stealthing should be put into practice. However, Law Society president Pauline Wright considers this unnecessary because if sexual consent is given provided a condom be used and the condom is then removed during sex without knowledge or consent, she says “it is essentially sexual assault because it undoes that agreement.”

In another argument related to stealthing. If a woman consents to sex on the basis that her partner promised to wear a condom but all along he knew he was going to take it off, then some argue that can be considered fraud, which is also a punishable offence in NSW.

Section 61HA of the Crimes Act allows for someone to be charged with sexual assault for taking off a condom during sex.  However, critics argue that proving assault under these types of circumstances is extremely difficult.

As with other forms of sexual assault, if you suspect that you have been victim of stealthing report it to the authorities as soon as possible and get an examination. Also provide the police with the used condom because it will be used as evidence and can also support any claims that condom use was discussed.

If you or someone you know has experienced stealthing call 1800 RESPECT or Q LIFE on 1800 184 527 for support.