The Australian Capital Territory has set a legal precedent by becoming the first jurisdiction in Australia – and one of the few in the world – to prohibit the act of “stealing” or removing a condom without consent during sex.
The Crimes Act, as amended by the ACT, now prohibits the removal of a condom during intercourse or no condom at all in circumstances where condom use was previously agreed.
The law was introduced by Liberal leader Elizabeth Lee, who said its goal is to clarify the law before anyone becomes a victim.
We cannot wait for cases to go to court before theft is outlawed – we must act proactively and make it clear to the community that such behavior is unacceptable and is a crime.
How common is stealth?
Theft is not a new problem in society, but only recently has it attracted the attention of legislators in many countries.
In 2015, journalist and writer Monica Tan described the theft as a “kind” of rape after being kidnapped by her then partner.
In 2017, American civil rights attorney Alexandra Brodsky described the act as “rape-related,” which served as the inspiration for California’s newly passed legislation.
That same year, Australia’s Triple J’s Hack program shared stories of both survivors and criminals. Stealthing was also recently featured on screen in Michaela Coel’s television series I Can Destroy You.
In particular, by changing the law to criminalize theft, ACT recognized the inherent harm caused by the actions to the physical and psychological well-being of survivors.
Recent research shows that stealth affects more members of our community than we think. A 2018 study by Monash University and the Melbourne Center for Sexual Health surveyed 2,000 people and found that one in three women and nearly one in five men who have sex with men experienced stealing.
A 2019 article published in the US National Library of Medicine found that 12% of women between the ages of 21 and 30 reported stealth.
Another American study of men between the ages of 21 and 30 found that 10% of them removed condoms during sex without consent. These men admitted to having done this on average three to four times in their lives.
Read more: Rape, Sexual Assault and Sexual Harassment: What’s the Difference?
Theft cases in court
Theft has been considered sexual assault by courts in many countries, including New Zealand, Germany, Switzerland and the United Kingdom.
However, theft has not been specifically declared illegal in these countries.
There has been a lot of controversy in Australia over whether theft is already included in existing sex offense laws or whether it should be specifically spelled out in the law.
Some argue that theft already falls under existing law, which states that a person will not consent to sex if he or she is mistaken about the “nature of the action.”
However, legal experts argue that in cases of theft, the sexual nature of the act is understandable, but the condition of consent – the use of a condom – is not agreed.
The theft case is currently pending in the Victoria Courts, but it has been significantly delayed due to COVID-19 and will not be heard until 2022.
It was hoped that the case would set legal precedent and ultimately lead to a change in the state’s sex offenses law. However, parliament is unlikely to consider changing any laws before deciding the case.
Read more: Victoria case could set new legal precedent for stealing or removing a condom during sex
California takes a different approach
California’s new law, which was also passed last week, is the first US law to prohibit theft. This law is also a compelling precedent for other states and countries.
California has taken a different approach to ACT. The new law adds secrecy to the state’s civilian definition of sexual assault by allowing victims to sue the perpetrators for damages.
However, this would not view theft as a crime that could lead to imprisonment. MP Cristina Garcia has twice failed to pass legislation criminalizing the act.
The difficulty of enacting secrecy laws reflects a general reluctance to criminalize the act. American legal commentators said the theft could already be considered a “misconduct of sexual assault” in California, although this is not explicitly mentioned in the state’s criminal code.
This reluctance seems to stem from the potential difficulties in legally proving the intentional theft. However, it’s important to note that legal analysts have acknowledged that theft has rarely been prosecuted in California under old state misdemeanor laws, indicating a need for further legislative clarity.
Both ACT and California law are a step in the right direction, demonstrating the need for a new legal approach. As Brodsky, a civil rights lawyer, said,
I think the law at its best can express the norms of the community and how we should treat each other. I do think that many survivors will find confirmation in the fact that the state legislature agreed that what happened to them was wrong.