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.

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.

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.

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.

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