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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-10-13 Daily Xml
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Bills

Criminal Law Consolidation (Stealthing) Amendment Bill

Introduction and First Reading

The Hon. C. BONAROS (15:55): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935. Read a first time.

Second Reading

The Hon. C. BONAROS (15:55): I move:

That this bill be now read a second time.

I am pleased to introduce the Criminal Law Consolidation (Stealthing) Amendment Bill 2021. If you had asked me back in January what stealthing was, I would have had no idea. I had to Google the term when I came across it. For those of you who are still unsure, you could easily be forgiven for not knowing what the term relates to, at least not by name.

Stealthing is the contemporary term for the non-consensual removal of a condom during sex when consent has only been given for sex with a condom. This bill contains a relatively simple amendment to division 11 section 46 of the Criminal Law Consolidation Act to expand the list of factors which can negate consent to include non-consensual condom removal. Section 46 of the Criminal Law Consolidation Act states:

(1) In this section—

'sexual activity' includes sexual intercourse.

(2) For the purposes of this Division, a person consents to sexual activity if the person freely and voluntarily agrees to the sexual activity.

(3) Without limiting subsection (2), a person is taken not to freely and voluntarily agree to sexual activity if—

(a) the person agrees because of—

(i) the application of force or an express or implied threat of the application of force or a fear of the application of force to the person or to some other person; or

(ii) an express or implied threat to degrade, humiliate, disgrace or harass the person or some other person; or

(b) the person is unlawfully detained at the time of the activity; or

(c) the activity occurs while the person is asleep or unconscious; or

(d) the activity occurs while the person is intoxicated (whether by alcohol or any other substance or combination of substances) to the point of being incapable of freely and voluntarily agreeing to the activity; or

(e) the activity occurs while the person is affected by a physical, mental or intellectual condition or impairment such that the person is incapable of freely and voluntarily agreeing; or

(f) the person is unable to understand the nature of the activity; or

(g) the person agrees to engage in the activity with a person under a mistaken belief as to the identity of the person; or

(h) the person is mistaken about the nature of the activity.

There is then an example in relation to one of those activities. It is my proposal that we include an additional factor to the list of things that can negate consent, to state:

the person agrees to engage in the activity because of a misrepresentation by the other person about the use of a condom.

Without consent to a sexual activity the act can constitute rape or sexual manipulation, with a penalty range from 10 years to life imprisonment: 10 years applying to the act of sexual manipulation and a maximum of life imprisonment to the offence of rape. Of those two offences it is predominantly the act of rape where consent becomes an issue and where stealthing is also prevalent.

We have been consulting on this bill for a good part of the year and have spoken with a broad range of stakeholders, from public health experts to victims. As I said at the outset, if I had not come across a documentary on stealthing sometime earlier in the year and thought, 'I don't know what this is, let's google what stealthing is, first of all,' and then subsequently watched that documentary, I would not have known how prevalent the practice is.

Since then, we have continued to have stakeholder engagement. I was pleased to see only last week the ACT became the first Australian jurisdiction to criminalise stealthing. It joins a growing number of jurisdictions around the world to legislate against this disturbing yet very common practice. Earlier this year, a New Zealand man was convicted for the rape of a sex worker after removing a condom not only once but twice, despite the victim making it abundantly clear the sex was not consensual without a condom. He was sentenced to three years and nine months in prison. I think more recently we have heard of California having moved down the path of criminalising the practice of stealthing, and they are amongst a group of growing jurisdictions that are moving this way.

The bill makes it 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. It is my hope this bill changes the lens through which men in particular view this behaviour, because data collected by the Melbourne Sexual Health Centre in 2018 shows just how common the vile act of stealthing really is.

Of the more than 2,200 women and men aged 18 and over who presented to the clinic and agreed to participate in the Monash study, 32 per cent of women and 19 per cent of men reported being stealthed at least once in the past. That is about one in every three women and one in every five men.

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. The evidence shows stealthing is prevalent in modern dating. Of course, stealthing does not just happen to women either; 67 per cent of male respondents to the Monash study reported experiencing stealthing after meeting their sexual partners online on dating forums, including Grindr and Tinder. Quite frankly, though, it is irrelevant whether you are on a date, whether you are working, whatever the case may be, I think we can all agree stealthing is a repugnant and appalling thing to do to any person.

During the course of consulting on the bill, I was deeply repulsed to learn that Adelaide appears to have at least one very notorious serial stealther. I have spoken to two women in the last 24 hours who reported being stealthed by the same man. They have given me detailed accounts of what happened to them and to people they know by the same perpetrator. He targets unsuspecting new sex workers. It has apparently become his modus operandi for years. Even though this is widely known, the brothel doors that he frequents have continued to remain open to him, and workers are still offered to him. He preys on those workers because of the lack of some other legislation that we have in this jurisdiction, and I will get to that soon.

One of those victims has detailed the following. She has previously provided this to parliament, but yesterday when I spoke to her again she provided me with a fresh copy of this material. It reads:

Lives around Westlakes. Often gets SWs (sex workers) to visit his home. He saw me personally in 2016 when I was new. He came to see me in a CBD hotel—it would have been in 2016/17. He is an older man but physically fit and strong—he showed me his biceps and asked me to arm wrestle him. It was done in a nonchalant way but in hindsight it was basically a way of displaying dominance and making you realise he could overpower you.

Once we were having sex he moved me into a position where he was standing behind me, and I could feel him fiddling with his penis. He is obviously adept at taking the condom off without people noticing. In fact, in that position you can't see what he is doing. I just had an inkling that his behaviour felt a bit off, and after a few minutes reached back and felt that he didn't have a condom on. He acted surprised, but I could tell that he had done it on purpose. I told him I wasn't on any birth control, and that he probably didn't want to be a father and pay child support at his age, and that seemed to rattle him enough.

It was long enough ago that I can't remember any other details. When I later started discussing this, as I got to know other sex workers, it became evident that Mark is well known to book private and brothel workers, and during the booking stealths the condom off. Fortunately, I caught him out before he ejaculated, but many workers have not been so lucky. I only personally know about 15 Adelaide sex workers, and he has stealthed—taken the condom off without the worker's consent or knowledge—at least 10 or 12 of them. I cannot imagine how many others I don't know that he has done this to.

When speaking to this person, I said to her, 'What did you think?', and she said to me, 'It was rape, 100 per cent.' She went to the police, only to be told there was nothing she could do.

At least two of the woman I have spoken to said that this particular client has been stealthing for years, he has a reputation for preying on young workers in particular, and he banks on the fact that none of them will complain or that nothing will happen as a result. Of course, the lack of a regulated sex industry in this jurisdiction has made it all the more difficult for those sex workers to make a complaint and for that complaint to be followed through, without facing the full force of the law themselves.

Even if stealthing were explicitly dealt with in our laws, the reluctance to come forward continues to exist because of their line of work. Until then, they rely on word of mouth from other workers, they rely on sites like Ugly Mugs—a violence prevention program that supports sex workers and groups like SIN—to know which perpetrators to keep away from. Still, those I have spoken to and those I have consulted with say that this is a very welcome move, because it is one step closer to providing them with a safe working environment.

I do not need to explain why I am outlining sex workers at the outset of this debate, because we know that in all likelihood they would be amongst the highest proportion of people who are impacted by it without any recourse. Going to the police is not an option for those workers, like it would be for one of us who encounters this sort of situation and then makes a complaint to police. They have other limitations that prevent them from doing the same. Like we heard from this victim, she felt strongly enough about this to go to the police, only to be told, 'There is nothing we can do to help you.'

So with stealthing explicitly listed as a factor to negate consent as part of this bill, there will be something they can do confidently if the bill passes, but of course there are other factors that this chamber has to consider in terms of a regulated sex industry in order for them to feel 100 per cent safe about pursuing any perpetrator of this sort of crime.

So, Mark from West Lakes, you are on notice. This is one piece of legislation that will give victims the confidence to come forward, because we know a majority have suffered in silence in the past. Only 1 per cent of victims reported to the Monash University study that they have made a police complaint. Even victims themselves who do not work in the sex work industry specifically are left confused or helpless, and 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 do men stealth?' In my view, the sense of entitlement and the prioritisation of their own sexual gratification, above the health and wellbeing of their sexual partner, can be the only reason. In their own warped mind, maybe they think it is some sort of sick game or an act of degradation. Perhaps these men lie to themselves, tell themselves that what they are doing does not make them a criminal or a rapist, but in reality it is a selfish, harmful and disgusting act and it is time we spell it out for them.

The very existence of this law, I think, will set a significant threshold, a clear line in the sand, and if you cross that line, you are committing a very serious crime. If you cross the line, you will face the potential charge of rape and the maximum imprisonment of life. Let us make it abundantly clear to all those men who attempt to justify in their head that this is not a big deal, because as we know rape does not have to be a forceful or violent act for it to constitute rape.

Stealthing is a vulgar practice with potentially serious consequences for the victim, both physical and psychological. From a public health perspective the consequences can include the possibility of contracting a sexually transmitted infection, such as HIV, or an unwanted pregnancy. From a mental health perspective the consequences can include anything from anxiety to depression to PTSD.

The Monash study I have referred to highlighted that many victims are left confused as to whether they are actually the victim of a sexual assault, and that is no different from any of the other consent factors that apply. I think we would all recall the same sorts of arguments applying in relation to someone who might have been under the influence of drugs, in relation to someone who might have been under the influence of alcohol, in relation to someone who might have been passed out, in relation to someone who might just be asleep, in relation to anyone who does not have capacity. That is at the heart of the issue of consent.

Our laws are very clear as to where consent is negated and it is important that we broaden that definition of consent to ensure that there is no blur when it comes to the practice of stealthing. We have to send a strong and clear message to the community that if you commit this, you could go to prison, potentially for life. I genuinely hope that this will send a strong message to the community, that it will influence consent education in our schools, that it will make men stop and think the next time they decide stealthing is not a big deal, because it is a violation of a person's dignity and their autonomy. It is a risk to a person's health and to their safety.

Anyone practising law, and I think anyone in the wider community, will tell you that rape is already an extraordinarily complex area of the law and the issue of consent usually features front and centre in those complexities, so we need to be doing our level best to remove barriers and make what is an extraordinarily complex area of law easier for our courts to interpret. The addition of stealthing to our consent provisions does just that.

I do not need to remind any of you how extraordinarily difficult and indeed how extraordinarily brave it is for a victim to pursue a rape allegation in the first instance. Historically, like all sexual offending crimes, victims are put on trial. That has not changed enough in recent years. We know this even through the reluctance of people to come forward and see a complaint through to prosecution, but there is always a victim left at the end, whether they go through that process or not.

These laws are in many ways intended to encourage people to come forward and make those complaints, because when they do not come forward and make those complaints we allow people like Mark from the western suburbs to continue to frequent brothels or visit sex workers or go online to dating websites and find young people, older people—whatever the case may be—to engage in sexual intercourse with and feel the sense of entitlement that he does to stealth them at the same time.

In my mind, this is not different in terms of the education campaign that applies to sexting. I think we can all think back to a very recent time when revenge porn was the thing of the day, when people would engage in the practice of sending photos via social media or via their phones, disseminating that material to others without any legal repercussions.

It took making that a criminal offence, it took an education campaign for our community, or members of our community, to finally appreciate that that practice is not acceptable, that it does not meet current day community expectations and that if you take part in that practice then you will be subject to the full force of the law. This is no different. All we are doing is expanding those provisions that are already clear in relation to when consent will be negated. With those words, I commend this bill to the chamber.

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

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