The legal grey area around prosecuting ‘stealthing’ in Australia

‘Stealthing’ is a term that has been coined by Alexandra Brodsky in the Columbia Journal of Gender and Law to describe a scenario where a male partner removes a condom during sex, without consent.

Stealthing, whilst not a criminal charge in New South Wales, could potentially constitute a form of sexual assault.  NSW Law Society President, Pauline Wright, has commented that removing a condom after prior agreement that one will be used could take intercourse from being a consensual act to being an assault.

In NSW sexual assault without consent carries a potential pentalty of 14 years imprisonment.  However, stealthing’ is without legal precedent in Australia as no one has taken a case of this nature to the courts.

This isn’t the case internationally.  In January this year a 47 year old man was convicted of rape by a Swiss Criminal Court for removing a condom during sex without consent and was given a 12 month suspended sentence.  WikiLeaks Founder, Julian Assange, was also accused of a similar offence in Sweden in 2010.

University of New South Wales Criminology Lecturer, Dr Bianca Fileborn, believes that stealthing could be prosecuted under existing laws in NSW but “the challenge is proving that a consensual act became non-consensual to the criminal standard”, which in NSW is beyond a reasonable doubt.

If you’ve been accused of a criminal offence in New South Wales, or for more information on your legal rights, contact Brazel Moore Lawyers on (02) 4324 7699 to speak to an experienced criminal lawyer.