Page 1086 - Week 04 - Thursday, 22 April 2021
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those brave enough to speak up, I am sure there are many more who have experienced such trauma. As the issue of stealthing has been forced into the public eye, it has become apparent that our laws are not reflecting the reality. So many people in our community have been victims of stealthing, but most have no idea that such acts could be considered a negation of consent.
The fact that the reporting rate is so low is, at least in part, because of laws that are not clear about the legal implications of stealthing. It is our duty, Madam Speaker, as lawmakers, to empower all Canberrans to be able to come forward to police and to feel that they will be genuinely heard and to break down the fear and stigma of such violation and assure the community that the law is on their side.
We cannot wait for a case to go before our own courts here in the ACT before we act on stealthing. We must take action now. Stealthing is a relatively new area within criminal law, and it is unclear whether it is illegal in the ACT. If sex has been consented to on the condition that a condom be used and that condom is removed, fresh consent should be required.
I am only aware of one case of stealthing that has been brought before the courts in Australia. I understand that this case in Melbourne has been delayed due to the pandemic. However, there have been cases of convictions for stealthing in Switzerland, Canada and Germany. Just recently, over the last couple of weeks, a man was convicted of rape in New Zealand after he removed a condom during sex without the woman’s consent. This conviction sets a new precedent of recognising stealthing in criminal law in New Zealand. With my bill, we too can make it clear that stealthing will and should be illegal in the ACT. This is an opportunity for the ACT to be at the forefront of these reforms and legislate proactively, instead of allowing more men and women to fall victim to such a heinous act.
My bill seeks to address this very issue. My bill amends the Crimes Act to expressly define stealthing as a factor that negates consent. My bill inserts new paragraph 67(1)(ga) to expressly state that consent is negated if the consent is caused by an intentional misrepresentation by the other person about the use of a condom. This new addition to the Crimes Act will ensure that where consent is given on the basis that a condom be used during sexual intercourse and the alleged offender either removes the condom or does not put on a condom at all and intentionally does not inform the other person then the other person’s consent is taken to be negated. When consent is negated, the act of sex is a sexual assault.
In bringing forward this bill today, I have sought the views, feedback and expertise of numerous sections of our community—lawyers, from prosecution to defence, Legal Aid, the Women’s Legal Centre, the Law Society and the Bar Association. I acknowledge the Bar Association’s views that the current laws perhaps may and do cover stealthing. It is difficult to know, of course, because we have no precedent.
But what is clear is that our community is calling for more transparency, clarity and certainty that our laws accurately reflect what our society deems to be a heinous and unacceptable act. Our laws, particularly our criminal laws, should also be a deterrent for unacceptable behaviour. Making it clear and ensuring there is no doubt that the
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