‘Stealthing is rape’: the Australian push to criminalise the removal of a condom during sex without consent

One in three women and one in five men globally have been the victim of “stealthing”, the non-consensual act of removing a condom during sex, yet the term has only recently entered public awareness – and courtrooms.

“Anecdotally, stealthing was something that felt yuck, confusing, violating and wrong,” the Australian Capital Territory’s Liberal opposition leader, Elizabeth Lee, says. “But victims of it didn’t even know it had a name, let alone that it negated their consent.”

In 2015, Monica Tan described stealthing in Guardian Australia as “sort-of” rape. Two years later, American civil rights attorney Alexandra Brodsky wrote of “rape-adjacent” condom removal for Columbia’s Journal of Gender and Law, enshrining its colloquial name in academia. In the same year, both victims en perpetrators shared their “stealthing stories” to Triple J’s Hack.

The act has now begun being openly portrayed on screen, namely in Michaela Coel’s series I May Destroy You. And cases of stealthing have increasingly entered judicial courts around the globe, met New Zealand’s first prosecution against the act last week landing the accused in jail.

As a result, stealthing has slowly started entering the realm of discourse around consent. Nou, Lee leads the Canberra Liberals’ proposal to the ACT legislative assembly, pushing to change ACT consent legislation to explicitly criminalise the act of stealthing.

“Sex without consent is sexual assault. And sexual assault is a crime," sy sê. “In essence, stealthing is rape.”

Lee explains that the nature of her drafted bill ensures stealthing will be considered, under the law, a factor that negates consent.

“The uncertainty and lack of clarity in the current legislative treatment of sexual assault does not accurately reflect what is deemed unacceptable behaviour by the public.”

Lee says this “especially needs to be addressed now”, amid outrage following ongoing allegations of rape, harassment and sexual misconduct in Australia’s parliament.

Dr Bianca Fileborn, a sexual violence researcher of the University of Melbourne, agrees.

“It is this lack of legal and social clarity around the act itself that feeds the myths and deceptions around sexual violence.

“When you look at the case of Julian Assange, byvoorbeeld, you see there was widespread dismissal [of the acts he was accused of].”

With the case discontinued by Swedish authorities in 2019, Fileborn says that Assange’s alleged non-consensual tampering with his condom as a violation of consent was “treated like a joke”.

“It comes back to this idea that ‘real rape’ involves violence, extreme force and coercion, instead of being about the need for consent in a sexual encounter.”

Fileborn says there is a parallel between such thinking around stealthing, and other instances of sexual assault.

“The people who criticised Brittany Higgins – who came out with allegations against a [staffer in] Australian parliament at the beginning of this year – said she was just regretting drunk sex.

“There is a similar logic there. Put simply, it is the minimisation of a survivor’s experience.”

This mindset not only ignores the immediate concern of a victim’s sexual health, or the risk of unwanted pregnancies. It is also an incredibly violating experience, “in the way that all sexual violence is”.

“It removes the autonomy and control that a person has over their own body,” Fileborn says. “I am therefore suspect when hearing that some perpetrators argue that they do it simply because ‘sex feels better without a condom’.”

Fileborn’s guess at a perpetrator’s mindset mirrors exactly what an anonymous caller explained to Triple J’s Hack in 2017.

Under an alias, the caller nonchalantly admitted to stealthing “most of the time” because “it feels better”. He did so without fear of “someone pulling a lawyer on me” because, in his view, “I don’t think it’s breaking the law”.

When asked if this is a view held by most of his social circle, he answered: “Yeah, I’d say so.”

Fileborn says: “I ultimately think it comes down to the notion that perpetrators feel they have the power and right to do what they want and what pleases them, regardless of another human life.

“But a significant minority unfortunately adhere to those misconceived beliefs about sexual violence. And when those people find each other, they validate their beliefs.”

This mentality, when applied to activity across certain social media and internet circles, has been dubbed by sex columnist Nadia Bokody a “disturbing sex trend”.

Memes shared on private Instagram pages with hundreds of thousands of followers use language like “When you slip the condom off and she doesn’t notice”, or “when she thinks you’re protected but you enter raw”.

Similar-sounding TikTok videos by young male users, which have since been taken down, included messages along the lines of: “Sex you make her regret isn’t real rape.”

Though such questionable rhetoric may be seen as trivial, it shares the same mindset as larger-scale trends that have been widely acknowledged as problematic. An infamous example being the National Rape Day hoax, in which six men created a TikTok video encouraging viewers to commit sexual assault on 24 April – the date coinciding with Sexual Assault Awareness Month in America.

While the original post has been taken down, there remain more than 30m posts made by TikTok users with the hashtag #April24, responding in anger and fear to the hoax.

“There are trends like this that only reinforce the idea that sexual violence is normal, or something that can be laughed at or minimised,” Fileborn says. “And it forms part of the broader rape culture that enables minimisers, excusers and perpetrators.”

Dr Rosie Latimer, a lead researcher on a 2018 study by Monash University that found one in three women and one in five men who have sex with men had experienced the violation, notes that this social media discourse doesn’t escape the mindset of the victim either.

“Though over 60% of respondents considered stealthing to be sexual assault, of the people we surveyed, those who had fallen victim to stealthing were considerably less likely to consider it assault,” Latimer says.

Her theory is that this partly owes to stealthing “not objectively being considered sexual assault under the law as of yet”.

“When you look at something like the US National Criminal Victimization Survey, or other literature and studies examining the female victim narrative, it will talk about victims creating excuses, so they don’t have to view themselves as a victim, or their partner as a perpetrator.”

Lee believes these “skewed attitudes” – of boys “jeering” each other on across the internet, and of victims recreating the narrative in their head – are proof of “why it is so important we have these discussions in a frank and open matter”.

It all comes back to misconceptions, abuse of power at the hands of entitlement, and a lack of social and legal clarity.

But policymakers like Lee are hopeful.

“The recent prosecution in Wellington, [New Zealand] against a stealthing perpetrator is an important one, because there’s no clear precedent like it yet in Australia," sy sê. “So we will look to it, and see a judicial court rule that it is a clear and accepted fact that stealthing negates consent. And hopefully it will influence legislation change across Australia.”

Op dieselfde tyd, Lee acknowledges that changing the law isn’t the “be all and end all” of this discussion.

“There is a reluctance to talk about consent openly and frankly. This needs to change, with effort from all sectors – community organisations, policymakers, law makers, law enforcement, educators.

“We are taking important steps to raise awareness that this type of act is heinous, unacceptable, and is a crime. I think we are in the right time and frame of mind to be tackling it right now. And it is not a discussion we will let fall through the cracks.”

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