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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2022-11-30 Daily Xml
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Statutes Amendment (Stealthing and Consent) Bill

Second Reading

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic and Family Violence, Minister for Recreation, Sport and Racing) (17:29): I move:

That this bill be now read a second time.

I rise as the lead speaker for the government on the Statutes Amendment (Stealthing and Consent) Bill 2022, introduced by the Hon. Connie Bonaros in the other place, and indicate that the government will be supporting this bill. In speaking to this, I place on record my wholehearted gratitude for the work of the Hon. Connie Bonaros on this bill and for her steadfast commitment to driving change to tackle gender inequality and sexual and other violence against women. It is a commitment that I and many others in this place share.

It is a commitment certainly shared by the member for Elder, who absolutely has an interest in what we can do together in this place to review laws about consent to sexual activity and who certainly has an interest in this particular issue in relation to stealthing and consent. I thank her for her particular interest and advocacy in this regard.

As I said, it is a commitment that I share, a commitment that has spanned most of my life and that has inspired an enduring movement that continues to grow as, year after year, we face a horrific and deeply unacceptable prevalence of sexual, domestic and family violence. This bill is an important step we can and must take forward in our quest to address this violence. The bill proposes various improvements to the operation of laws around sexual offences and consent to sexual activity, including amendments to:

section 46 of the Criminal Law Consolidation Act to put beyond doubt that stealthing, whereby a person deliberately and without consent does not use, damages or removes a condom before or during sexual activity, is unlawful conduct;

section 124(8) of the Criminal Procedure Act to require the disclosure of experts' reports to the prosecution where the expert evidence relates to topics that are dealt with in section 34N of the Evidence Act 1929; and

section 34N(1) of the Evidence Act to broaden the jury directions that must be given in cases involving a sexual offence where consent is in issue and to allow for the admission of expert evidence to address certain misconceptions about non-consensual sexual activity.

Just last year, I had a young woman come to see me about her experience of stealthing. We, of course, connected her with Yarrow Place and SAPOL to get the support and access to justice she needed and deserved and to have the perpetrator dealt with. We also, of course, deeply listened to her. Her utter bewilderment, sadness, fear and worry about how she could get the support she needed was heartbreaking, particularly given that the law did not have provisions to specifically criminalise stealthing. If this bill passes, women like this one can seek the justice they deserve.

The bill is identical to the Statutes Amendment (Stealthing and Consent) Bill 2021 that was introduced to parliament last year. Unfortunately, that bill, like many other important pieces of legislation, did not pass before the end of the parliamentary sitting time under the hand of the former government. I am so pleased that this bill, and a range of other bills that we have introduced and will introduce, will now be debated and hopefully progress as they absolutely should.

It is incumbent on us as parliamentarians to advance legislation that focuses both on addressing the gender inequality that drives violence against women and on progressing measures that deal with perpetrators and empowers women on their journey to healing and to recovery. Over recent years, we have seen revelations of alleged rape, sexual assault and harassment—including in the highest offices in the land—come to the forefront of our community discourse, showing just how much we still have to do before women in this country feel and are safe, secure and respected.

Stealthing is an insidious crime where a perpetrator deliberately and without consent damages, removes or does not use a condom before or during sexual activity. Stealthing as a form of abuse which can have significant impacts for victim survivors. Stealthing is a form of abuse which carries a risk of transmission of sexually transmitted infections, may result in unplanned pregnancy and may be used as a form of coercive control—sometimes referred to as 'reproductive coercion'. It can cause serious psychological harm to the victim survivor amongst emotional distress, trauma, guilt and shame.

The existing laws around stealthing are unclear. Any lack of clarity whatsoever must be addressed. That is what this bill does. The government wholeheartedly agrees that the introduction of an express provision that addresses stealthing would put it beyond doubt that such conduct is unlawful. Chanel Contos, who is the founder of the Teach.Us.Consent. campaign, has long been a staunch advocate for positive sex education in Australia, including awareness raising around stealthing. Chanel's extraordinary leadership has empowered and amplified the voices of a number of young women about their experiences of sexual assault.

In a recent meeting with our Attorney-General, Chanel and her colleagues made clear that, as well as making the law expressly clear, a critical part of this explicit legislation is to educate people on what stealthing is. Only 3 per cent of over 2,000 respondents in an Australian youth study said that school taught them about stealthing. In Australia, one in three women and one in five men who took part in research within Monash University in 2018 said they had experienced stealthing. This represents both a shocking prevalence of stealthing and a call to action to address it. This bill does.

More broadly, our laws on consent and the education that surrounds them are outdated and in need of review. In addition to the reforms proposed by this bill, this government has separately committed to a broader review of legislation pertaining to consent to sexual activity. This review is currently underway, and I look forward to considering the findings of this review alongside the Attorney-General in due course.

I again thank Chanel Contos and all advocates in this space for their extraordinary courage and conviction in raising their voices to stand up and say 'no more', leading a unifying cry that enough is enough, to ensure that this shining of a light onto gendered violence against women will continue to burn brighter and will be a relentless call and an eventual catalyst for change. The magnificent and courageous young women who have recently led calls for change have inspired their peers and older generations of women to draw a line in the sand—a line from which we will not retreat until women in our community are no longer subject to rape, sexual assault, sexual harassment, disrespect or discrimination.

Through each of their bravery, women and girls across Australia have found their voices, and we as lawmakers must listen to these voices and act. Again, I am proud that through this bill we are. Finally, I again thank the Hon. Connie Bonaros for her longstanding support and advocacy in this area, and I am pleased to be supporting this honourable member's bill today.

Mr TEAGUE (Heysen) (17:38): I indicate that I am the lead speaker for the opposition. I indicate the opposition's support for the bill and seek its passage through the house. I, too, recognise the important work of the Hon. Connie Bonaros MLC in another place in bringing a form of this bill first to the other place last year. As the minister has indicated, the bill presently before the house replicates in its entirety and without amendment the bill that was subsequently brought to the house by the former Liberal government. I recognise the former Attorney-General, the Hon. Vickie Chapman, for her work in that regard.

Taking the form of the bill presented by the Hon. Connie Bonaros and expanding upon it coherently reflects what we know about the possibility of a gap in the law for the purposes of section 46(3) in relation to the absence of consent. As importantly, but perhaps not quite so obviously in terms of the description of the bill and the focus that might otherwise be placed on the direct provision for stealthing as being one of those indicators expressly of the absence of consent, the bill also provides for the expansion of the directions that are given in relation to consent in certain sexual cases

In turn, that reflects the work back in 2020 of the New South Wales Law Reform Commission, which made recommendations in relation to how juries are directed about the circumstances in which there is an absence of consent. It might pay to repeat them here because they are new and they are now to be included in those directions. First, there is no typical or normal response to non-consensual sexual activity. Secondly, non-consensual activity can occur in many different circumstances and is not always perpetrated by a stranger in a public place.

Thirdly, non-consensual sexual activity can occur between different kinds of people, including people who are married or in an established relationship with one another. Fourthly, the presence or absence of emotional distress when giving evidence does not necessarily mean that a person is not telling the truth about an alleged sexual offence. Fifthly, it should not be assumed that a person consented to sexual activity because the person wore particular clothing or had a particular appearance, consumed alcohol or drugs or was present at a particular location, either generally or at a particular time.

Relevantly, the bill provides for the exchange, firstly, for the admissibility of expert evidence in that regard, something that up until now and presently is a matter within the discretion of the trial judge. Coupled with the recognition of the admissibility of such evidence, the bill introduces an obligation for the exchange of that expert evidence in the event that either party is intending to rely upon it. That is an obligation that the prosecution already has. It will apply also to the defendant as the result of the passage of this bill.

I indicate again that I adopt the sentiments of the minister to that extent. Wherever there is a gap or a possibility of a lack of clarity in this regard, then taking steps to ensure that there is clarity is a step that ought to be taken so as to provide confidence that victims of abuse and abuse of the most serious kind are not in circumstances of any uncertainty.

I stress as well that those provisions that are the subject of section 46(3) remain non-exhaustive; it is not a matter of codification in this respect. The bill now adds to the list of those examples of circumstances in which a person does not consent. I just take this occasion to indicate that consent is the touchstone and it should not be somehow a matter for exhaustive codification. Where there is occasion to more expressly set out circumstances in which consent is not present, and that is of assistance as is the case here, then we ought to do that.

However, for those following the debate and those who are otherwise in need of the reassurance of the provisions of the Criminal Law Consolidation Act, I just do highlight that consent is the touchstone and that ought be borne squarely in mind. This work is important work. It does not become set in time as a result of the passage of this bill but this bill contains those positive steps. I commend the bill to the house.

Ms CLANCY (Elder) (17:46): I rise today in support of the Statutes Amendment (Stealthing and Consent) Bill 2022 to improve our laws regarding sexual offences and consent to sexual activity. I also want to thank the Hon. Connie Bonaros for her leadership in introducing this bill to the other place and the guidance of the Hon. Kyam Maher and the member for Reynell for their work in ensuring this important reform can finally be considered by our parliament. It would be remiss of me to not also reflect on the important contributions of former Attorney-General Vickie Chapman in introducing a similar bill in the previous session of parliament.

There are a number of legislative reforms included in this bill to improve our laws' understanding of sexual offences and consent to sexual activity in contemporary South Australia. I would like to start by highlighting the particularly distressing act of stealthing that this bill seeks to criminalise. Amendments proposed in this bill to section 46 of the Criminal Law Consolidation Act 1935 will finally ensure that stealthing is considered as unlawful conduct. Stealthing is where someone deliberately and without consent does not use, damages or removes a condom before or during sexual activity.

This intricate form of sexual violence is particularly distressing as, by its very definition, it is perpetrated by those who have received consent based on a lie. Consent is not simply a matter of a yes at the beginning. It should be something all parties are conscious of throughout the experience. Consent can be withdrawn at any point and, if consent is given on the basis of the sex being with a working condom, the consent does not apply if there is not a working condom. This type of conduct has now been explicitly criminalised in the ACT, New South Wales, Tasmania and Victoria. As our peers in Queensland and Western Australia look to follow the lead of other jurisdictions, I am glad South Australia is getting on board.

A study at Monash University in 2018 found that one in three women and one in five men who attended a local sexual health clinic reported having sex with someone engaged in stealthing. This study also found that women sex workers were three times more likely to have experienced stealthing. Like all forms of sexual violence, stealthing can have lasting and significant impacts on those it is perpetrated against. It carries a risk of transmission of sexually transmitted infections or unplanned pregnancy and can be used to control a partner. This is an issue of consent, safety and control.

Criminalising this activity reflects the majority view of the communities that elected us to this place; however, we must continue to reform our laws and improve consent education to ensure that all South Australians understand that sexually violent acts, such as stealthing, are assault.

We can and must do more to better educate the community on practising safe and consensual sex. We also need to change the way we talk about consent. I wish I knew who said it in the first place—and please let me know if you do—but if it is not a 'hell, yes', it is a 'no'. I have had conversations with male friends who would never in a million years think they have had sex that was not consensual, but they have also admitted, when we have really dug down, that they have convinced someone to sleep with them. While they might think they made a convincing argument to gain consent, I disagree.

It can be exhausting, particularly when you are young, though absolutely not just when you are young, to say no over and over again, while also trying to be polite because we would not want to upset anybody or be labelled a prude or frigid or whatever derogatory term is now being used to put people down who want to decide who touches their body and when and how. Sometimes people get to the point of giving in and just waiting for it to be over because it feels like the easiest option. That is clearly not enthusiastic consent and, when it comes to sex, if consent is not given enthusiastically, can we really call it consent at all?

I do know that this is a very challenging way to look at consent for some and I completely understand that it makes some people feel uncomfortable as they reflect on their previous experiences, but I think that discomfort is important if we have any hope of changing the way our children learn about and think about consent. I commend the bill to the house.

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic and Family Violence, Minister for Recreation, Sport and Racing) (17:51): First of all, I say thank you again to the Hon. Connie Bonaros. Thank you to the shadow attorney-general for his contribution and thank you so much to the member for Elder, who articulated very well why this legislation is so important both for the conduct that it will ensure is unlawful and in terms of the education journey that our community is still on in relation to stealthing and in relation to affirmative or enthusiastic consent. Thank you very much to those speakers. Thank you to the Attorney-General for his work. Again, I commend the bill to the house.

Bill read a second time.

Third Reading

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic and Family Violence, Minister for Recreation, Sport and Racing) (17:53): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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