Published by Geoff Harrison | 8 November 2023
The practice known as 'stealthing' or the non-consensual removal of a condom during sexual intercourse was criminalised in NSW in June 2022. This is made clear under the provisions of the Crimes Act 1900 that related to consent: s61HI(5). The practice became more widely known and understood as an offence, during the trial of Sri Lankan cricketer, Danushka Gunathilaka where he was found not guilty of sexual assault.
CRIMES ACT 1900 - SECT 61HI
(1) A person
"consents" to a sexual activity if, at the time of the sexual activity, the person freely and voluntarily agrees to the sexual activity.
(2) A person may, by words or conduct, withdraw consent to a sexual activity at any time.
(3) Sexual activity that occurs after consent has been withdrawn occurs without consent.
(4) A person who does not offer physical or verbal resistance to a sexual activity is not, by reason only of that fact, to be taken to consent to the sexual activity.
(5) A person who consents to a particular sexual activity is not, by reason only of that fact, to be taken to consent to any other sexual activity.
Example--: A person who consents to a sexual activity using a condom is not, by reason only of that fact, to be taken to consent to a sexual activity without using a condom.
(6) A person who consents to a sexual activity with a person on one occasion is not, by reason only of that fact, to be taken to consent to a sexual activity with--
(a) that person on another occasion, or
(b) another person on that or another occasion.