Stealthing

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.

Other Sources:

• Criminal Trial Courts Bench Book: Sexual intercourse without consent — from 1 June 2022

• CRIMES LEGISLATION AMENDMENT (SEXUAL CONSENT REFORMS) BILL 2021 - Second Reading Speech

• CRIMES LEGISLATION AMENDMENT (SEXUAL CONSENT REFORMS) BILL 2021- Second Reading Debated

• NSW Law Reform Commission: Consent in Relation to Sexual Offences, Report 148

• Australia Is (Finally) Turning The Tide On Stealthing Laws—Here's What That Means by Jess Pullar, Sept. 2022

Cases:

• DPP v Yeong (a pseudonym) [2022] VSCA 179

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Extracted Legislation:

CRIMES ACT 1900 - SECT 61HI

Consent generally

(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(3) Sexual activity that occurs after consent has been withdrawn occurs without consent.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.