Legislative Council: Wednesday, September 28, 2022



Statutes Amendment (Stealthing and Consent) Bill

Introduction and First Reading

The Hon. C. BONAROS (16:52): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935, the Criminal Procedure Act 1921 and the Evidence Act 1929. Read a first time.

Second Reading

The Hon. C. BONAROS (16:53): I move:

That this bill be now read a second time.

I am pleased, once again, to introduce the Statutes Amendment (Stealthing and Consent) Amendment Bill. Members who were here at the time might recall that following the last time this bill was introduced its provisions were subsequently incorporated into the former Attorney-General's bill, which made a number of other additional changes, but the long and short of the way that that bill progressed through this place was with multipartisan support, and that is certainly what I am hoping for once again.

It has been almost a year since I first introduced that similar bill, and much has changed on the national landscape in terms of sexual consent. Laws pertaining to consent and sexual assault have been and continue to be scrutinised and updated in line with modern thought and expectations and, as the Attorney would know, we have certainly had lots of discussions around issues pertaining to those matters.

The Queensland and New South Wales law reform commissions both published reports reviewing their respective consent laws in 2020, and the Victorian Law Reform Commission published its 600-page report last year. I understand there is a body of work being undertaken by the Attorney's department, particularly in reviewing the work undertaken in those jurisdictions, but I see no reason why we cannot act in the interim to clarify our laws in relation to stealthing, and complement that work.

Again, in the previous parliament everyone's position, in terms of the major parties, was quite clear in regard to their support for this. It can be a standalone piece of legislation. We do not need to wait for the other work that is being done by this government or taken up in terms of what was done by the previous government: we can just get this effectively done. That is the purpose of this bill.

Since I last spoke, New South Wales, Victoria and Tasmania have joined the ACT in expressly criminalising stealthing. We should already be on that list but, unfortunately, we did not get there before parliament was prorogued. They joined a growing list of jurisdictions around the world to legislate against this very disturbing yet common modern practice. For those members who were not here at the time, new members who have joined us since who may not be as familiar with this as others, 'stealthing' is the contemporary term given to the non-consensual removal of a condom during sex when consent has been given only for sex with a condom.

The bill seeks to amend section 46 of the Criminal Consolidation Act 1935 to expand the list of factors that can negate consent to include non-consensual condom removal. Without consent to a sexual activity the act is rape or compelled sexual manipulation, with a penalty range from 10 years to life imprisonment.

The bill includes two further amendments that were actually part of the previous Attorney's bill subsequent to mine last year, which sought to further strengthen the provisions we had originally proposed. The first amendment is an amendment to the Evidence Act to broaden the jury directions that must be given in cases involving a sexual offence where consent is in question, and the second is an amendment to the Criminal Procedure Act 1921 to require the defendant to disclose an expert report which considers the issue of consent well in advance of trial, as is already the case for the prosecution.

Clauses 4 and 6 are transitional provisions confirming the amendments to the Evidence Act and the Criminal Procedure Act prior to proceedings to an offence commencing after the commencement of those parts, regardless of when the offence occurred. The bill makes it very clear, in no uncertain terms, that consent for one form of sexual activity, that being sex with a condom, is not automatic consent for all forms of sexual activity, namely sex without a condom.

As I have previously outlined, data collected by the Medical Sexual Health Centre in 2018 highlighted just how common the vile act of stealthing really is. Of more than 2,200 women and men aged 18 and over who presented to the clinic and who agreed to participate in the Monash University study, 32 per cent of women and 19 per cent of men reported being stealthed on at least one occasion. While in that particular study, at least, sex workers represented a big cohort of female victims, this is not a contemporary phenomenon unique to sex work. According to statistics, stealthing is prevalent in modern dating.

Of course, stealthing does not happen just to women either: 67 per cent of male respondents to that university study reported experiencing stealthing after meeting their partner online on dating forums. Quite frankly, it is irrelevant whether you are on a date, whether you are working, or whether you have met someone and you find yourselves in that intimate moment: stealthing is an appalling thing to do to any person.

This bill will give the victims the confidence to come forward, because we know that a majority of them have suffered in silence in the past. Only 1 per cent of victims reported to the Monash study that they had made a police complaint. Even victims themselves are left confused or helpless, so it is time we set the record straight.

Many people I have spoken to have been just as horrified as I have and inevitably ask, 'Why would somebody stealth?' Perhaps it is prioritising their own sexual gratification over the other person, or an act of degradation. Perhaps these people lie to themselves about what they are doing and think that it does not make it a criminal offence and does not make them a rapist. It is time that we spell it out for them.

The very existence of this law will draw a clear line in the sand: if you cross that line, you will be committing a very, very serious crime. If you cross that line, you are facing rape charges and a maximum penalty of life in prison. Let us make it abundantly clear to all those who feel justified in their head that it is not a big deal, because we know that rape does not have to be a forceful or violent act for it to be rape.

Stealthing is a vulgar practice with potentially serious consequences for the victim, both physical and psychological. From a public health perspective, the consequences include the possibility of contracting sexually transmitted infections and unwanted pregnancies. From a mental health perspective, the consequences can obviously include anxiety, depression, post-traumatic stress disorder and worse.

We, as lawmakers, indicated previously in this place our intent to send a very strong and clear message to the community that acts like this could see you go to prison. It is my sincere wish that we now fulfil those commitments and that new members in this place have the opportunity to consider the debate that was had previously, and the bill that is before them, and to clear up once and for all this very blurred line so that it exists no longer. We do not need to let this issue linger unaddressed. I think it is time we got on with it.

If there are other issues that this government or the Attorney wants to pursue in this area then we can do so, but I think that this is a bill that warrants a swift passage through this place, a standalone bill which makes it clear that this behaviour will not be tolerated. With those words, I look forward to the support once again of this place for this most important piece of legislation.

Debate adjourned on motion of Hon. I.K. Hunter.