Stealthing (ACT)

Most Australian jurisdictions have now adopted an affirmative consent model of sexual consent. The ACT was the second jurisdiction to enact these laws, doing so in 2012. At that time, the practice known as 'stealthing' also became a criminal offence. This page deals with the offence of stealthing and the meaning of affirmative consent in the ACT.

The introduction of these laws marked a significant shift in how sexual consent is understood and prosecuted in Australian criminal law. The ACT's progressive approach to consent laws has helped establish important legal precedents that protect individuals from sexual assault and non-consensual sexual acts, including the deceptive removal of protection during intimate encounters.

Affirmative consent

Affirmative consent models of consent require active communication throughout sexual activity, with each party having a responsibility to check that the other party is willing to continue at each stage. Under this model, a person cannot be taken to have consented if they 'freeze' and do not do anything to indicate that they do not consent to an act. Instead, the onus is on the other party to ensure that something is done to indicate positive consent.

In the ACT, affirmative consent has been encapsulated in section 50B of the Crimes Act 1900, which defines consent as agreement that is:

• freely and voluntarily given; and
• communicated by saying or doing something.

Section 67 sets out the situations where a person is not to be taken to have consented. These include where a person is asleep or unconscious, where a person participates because of fear or force, where a person in incapable of consenting because of intoxication, or where they agree because of an intentional false misrepresentation by the other party about the use of a condom.

Key principles of affirmative consent

The affirmative consent model establishes several fundamental principles. Consent must be ongoing throughout sexual activity and can be withdrawn at any time. Silence or lack of resistance does not constitute consent. Previous sexual activity between parties does not imply current consent. The model also recognises that consent to one sexual act does not constitute consent to all sexual acts.

Communicating consent

Under ACT law, consent must be communicated through words or actions that clearly indicate agreement. This communication requirement ensures that both parties are aware of and agree to the sexual activity taking place. The law recognises that consent can be communicated in various ways, but it must be clear and unambiguous.

The offence of stealthing

The practice known as 'stealthing', where a person removes a condom during sex without the knowledge or agreement of the other person, is now a criminal offence in the ACT. Under section 67, this practice renders sexual activity nonconsensual, and the perpetrator could be charged with an offence. If sexual intercourse occurs after a condom has been removed without consent, the person may be charged with sexual intercourse without consent, which carries a maximum penalty of between 12 and 18 years imprisonment depending on the circumstances of the offence.

Legal definition and scope

Stealthing encompasses any deliberate removal, tampering with, or failure to use agreed-upon protection during sexual activity without the other person's knowledge or consent. This includes removing condoms completely, deliberately causing condom failure, or switching to different protection without agreement. The law recognises that consent given for protected sexual activity does not extend to unprotected sexual activity.

Impact on consent

When stealthing occurs, the initial consent becomes invalid because the conditions under which consent was given have fundamentally changed. The victim consented to protected sexual activity, not unprotected activity, making any continuation of the sexual act non-consensual and potentially criminal.

Has an offence been committed?

If a person is charged with an offence on the basis of stealthing, they will be found guilty if the alleged act occurred and the accused knew that the victim was not consenting or was reckless as to whether the victim was consenting.

A person is reckless as to consent if they do not think about whether the other person is consenting or if they do not take reasonable steps to ascertain whether the other person is consenting.

A person may be found not guilty of an offence if the court accepts that they had an honest and reasonable but mistaken belief that the victim was consenting. However, an accused person's belief will not be found to have been reasonable if they did not say or do anything to find out whether the other person consented.

Elements of proof

For a stealthing offence to be proven, the prosecution must establish beyond reasonable doubt that the accused intentionally removed or tampered with protection, that this act was done without the victim's knowledge or consent, and that sexual activity continued thereafter. The prosecution must also prove the accused's mental state regarding consent at the time of the offence.

Penalties and sentencing

The penalties for stealthing-related offences in the ACT are severe, reflecting the serious nature of these crimes. Sexual intercourse without consent carries a maximum penalty of 12 years imprisonment, which increases to 18 years in circumstances of aggravation under section 54 of the Crimes Act 1900 ACT.

Factors affecting sentencing

Courts consider various factors when sentencing stealthing offences, including the degree of deception involved, any physical or psychological harm caused, the vulnerability of the victim, and the accused's criminal history. The premeditated nature of the act and any breach of trust may also influence sentencing decisions.

Additional consequences

Beyond imprisonment, convicted offenders may face other consequences including registration requirements, restraining orders, and mandatory participation in intervention programs. These additional measures aim to prevent reoffending and protect the community.

Legal defences and considerations

While defences to stealthing charges are limited, legal representation is crucial for anyone facing such allegations. The complexity of consent law and the serious penalties involved make professional legal advice essential.

Available defences

Potential defences may include honest and reasonable mistake about consent, though this defence has strict limitations under ACT law. The defence must demonstrate that reasonable steps were taken to ascertain consent, which is difficult to establish in stealthing cases given the deceptive nature of the act.

Importance of legal representation

Given the complexity of sexual assault laws and the severe penalties involved, obtaining experienced legal representation is crucial. A qualified criminal lawyer can assess the evidence, advise on potential defences, and ensure that an accused person's rights are protected throughout the legal process.

Frequently Asked Questions

What constitutes stealthing under ACT law?

Stealthing under ACT law includes any intentional removal, tampering with, or failure to use agreed-upon protection during sexual activity without the other person's knowledge or consent. This encompasses removing condoms completely, deliberately causing condom failure, or switching protection types without agreement. The key element is that consent was given for protected sexual activity, not unprotected activity.

Can stealthing charges be laid even if no physical harm occurred?

Yes, stealthing charges can be laid regardless of whether physical harm occurred. The offence is based on the non-consensual nature of the sexual activity after the protection was removed, not on any resulting physical consequences. The law recognises that the deception itself violates the victim's autonomy and consent,