Stealthing: a criminal offence?

ABSTRACT

Non-consensual condom removal during sexual intercourse, commonly known as ‘stealthing’, presents a plethora of adverse consequences to complainants and is an emerging area of interest in the criminal law. Stealthing would require ‘fresh consent’ for intercourse to continue on a consensual basis after the condom has been removed. The substantive criminal law in Australia remains silent on the legality of non-consensual condom removal. This article will examine criminal law doctrines in Australia to determine whether stealthing would be considered to vitiate consent under the current law. This article concludes that it is unclear whether stealthing would be considered to negate consent to sexual intercourse under current consent laws in Australia. This article will ultimately propose two legislative reforms that seek to criminalise stealthing in Australia: to include stealthing as a discrete criminal offence, or to include stealthing under the current consent provisions as another circumstance where consent is deemed to be vitiated.

KEYWORDS:

• criminal law
• sexual offences
• stealthing

Notes

1 The terms ‘complainant’ and ‘accused’ will be used in this paper; the individual in a criminal trial against whom the offence has been committed is referred to as the ‘complainant’; the individual accused of committing a criminal offence is known as the ‘accused’.

2 This article uses pseudonyms to protect the anonymity of complainants.

3 See, eg, The Majority in Hutchinson where the court noted the complainant must agree to the specific physical act of sex, which does not include conditions and qualities such as birth control measures; R v Mobilio; R v Cuerrier.

4 Shane Trawick (2012) and Leah Plunkett (2014) both propose that birth control sabotage should be a separate crime in the United States. Plunkett (2014) views contraceptive sabotage as inconsistent with the typical ‘rape by deception’ cases and justifies criminal liability through the dispossession of a complainant’s full ownership of their body. Plunkett (2014) and Trawick (2012) concur that contraceptive sabotage should be a separate crime in situations where there is a level of mens rea toward causing pregnancy, and where pregnancy does in fact result from the sabotaged intercourse.