Stealthing: a criminal offence?

Abstract

ABSTRACTNon-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.