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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-11-16 Daily Xml
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Bills

Statutes Amendment (Stealthing and Consent) Bill

Adjourned debate on second reading.

(Continued from 28 October 2021.)

The Hon. K.J. MAHER (Leader of the Opposition) (17:08): I rise to speak on this bill and say that the opposition will be supporting this bill. This bill follows a very similar piece of legislation that was introduced by the Hon. Connie Bonaros and follows a very similar course of action when bills have been introduced by people like the Hon. Connie Bonaros in this place or the member for Reynell, Katrine Hildyard, in the other place that most of what is in the bill from non-government members is adopted as a government bill.

I will just comment briefly that sometimes it is good if the government could work with members if they have any concerns or problems about amending initiatives that non-government members have brought to one or other of the chambers, rather than replacing it and usurping the entire bill. I think it would do the Attorney credit to work closely with non-government members in that respect.

Be that as it may, and also noting that this has been done a number of times in the lower house with the member for Reynell's bills, where they have been usurped by a government bill and have progressed no further, that is probably even more of a concern, when the government takes over the initiative that was presented in a bill, presents its own slightly different version and then as a government bill elects to not progress it further, which can be done not as readily as it used to be able to be done but more readily in the House of Assembly.

While the term 'stealthing' is a new term for many people, it is an important area of law reform. Monash University published a study in 2017 that reported that one in three women and one in five men had experienced this phenomena, and less than 1 per cent had reported the matter to the police. It is essential that people are fully informed when consenting to sexual activity. This includes whether a device, such as condoms, are being used or not. A person who engages in sexual activity without informed consent is fundamentally committing a crime, and this bill seeks to remove any doubt that people are guilty of an offence if they engage in sexual activity if they are not doing it in accordance with all parties' agreement.

The bill amends section 46 of the Criminal Law Consolidation Act 1935 that deals with consent to sexual activity to specifically refer to the use of a condom. Division 11 of the act, rape and other sexual offences, makes it an offence to commit an act where the person has not consented or has withdrawn consent to a sexual act. The amendment to section 46 does not create a new offence, but would allow prosecution for existing offences where the act of stealthing occurred.

Further amendments are proposed to the Criminal Procedure Act 1921 and the Evidence Act 1928 to deal with a judge's instruction to juries and expert evidence. The Australian Capital Territory passed similar laws earlier this year. I understand Victoria has announced they will make similar changes. We support this bill.

The Hon. R.A. SIMMS (17:11): The Greens also support this bill, and in so doing I want to commend the Hon. Connie Bonaros for her leadership on this issue in putting forward a private member's bill. It is good to see that the government has taken this up and followed the Hon. Ms Bonaros's lead on this very important issue.

We know, of course, that when it comes to consent to engage in sexual intercourse that it is vital that consent continues throughout sexual intercourse, and that is where the behaviour of stealthing, that is, removing a condom without permission, is really so abhorrent. This is behaviour that is, unfortunately, all too common. I understand that in 2018 a study by Monash University and the Melbourne Sexual Health Centre surveyed around 2,000 people—this is reported in news.com, and I am quoting from that article—and found that one in three women and almost one in five men who have sex with men had experienced stealthing.

The author and journalist Monica Tan has described 'non-consensual condom removal’—and again I am quoting from the article—'as a sort of rape', in an article for The Guardian published in 2015. 'I call what he did rape like. He called it pushing my boundaries,' she wrote. To make it clear in terms of the impact of this behaviour, survivors have made clear, according to a Yale student, Alexander Brodsky, who wrote in her paper titled 'Rape adjacent, imagining legal responses to non-consensual condom removal', that was published in the Columbia Journal of Gender and Law:

Survivors make it clear as a result of the removed condoms they experienced fear of sexually transmitted infections and pregnancy and also a less concrete but deeply-felt feeling of violation.

There are lots of places around the world that have taken this matter very seriously and have legislated accordingly. California has moved to address this issue, and also recently the ACT, and I understand the Victorian parliament is also looking at it. It is very important for us to change our laws in South Australia to ensure that this is adequately addressed as the crime that it is. With that, I commend the bill.

The Hon. C. BONAROS (17:14): Obviously, I rise to speak wholeheartedly in support of this bill and echo the sentiments of my colleagues the Leader of the Opposition and the Hon. Robert Simms. I think the Leader of the Opposition makes a valid point and one that we would like to see become more common practice in this place. Of course, we do not ultimately care how a good proposal ends up becoming law, but it would certainly make things more favourable if ministers or the Attorney or whoever may be in question worked with the crossbench and the opposition when they do put a proposal forward which warrants some support.

I am not going to talk through what the bill does in terms of stealthing, because we know what it does, but I am pleased to see that this bill introduces new jury directions to dispel rape myths and create certainty in relation to admissible expert evidence. I think that is a very good improvement on the original bill that I proposed in this place most recently. As we know, one in every three women and one in every five men who attended the Melbourne Sexual Health Centre from December 2017 to February 2018, and who voluntarily participated in a survey at that centre, reported that they had experienced stealthing at least once.

I have previously given detailed accounts in this place of specific incidents of stealthing reported to me. Most recently, I went to a retail outlet to purchase something and the young woman behind the counter and I had a conversation about stealthing only to learn that her cousin, in fact, had been the victim of stealthing and that matter was being pursued even under our current laws but, of course, is in murky waters given that the issue of consent and stealthing is not explicitly covered in those laws.

With the passing of this bill, South Australia is set to join a growing number of jurisdictions around the world to draw a legislative line in the sand and it is about time that we did so. Of course, the ACT became the first Australian jurisdiction to expressly criminalise stealthing last month, in fact. Last Friday, the Victorian government also announced its intention to introduce stealthing legislation on the back of the Victorian Law Reform Commission's report 'Improving the response of the justice system to sexual offences'.

This bill contains a relatively simple amendment to section 46 of the Criminal Law Consolidation Act, as I have said, to expand the list of factors which can negate consent to include non-consensual condom removal. It incorporates the words 'whether express or implied' which, I understand, further clarifies this issue and is an improvement on that original bill. The New South Wales Law Reform Commission has also considered the broader issue of consent, publishing its report titled 'Consent in relation to sexual offences' in September 2020.

The bill picks up some further important recommendations from this report which seek to dispel a range of common misconceptions traditionally relied upon by defence counsel to discredit victims. We have already legislated for a number of them. A judge must already direct a jury that consent should not be assumed simply because the person did not protest or physically resist, was not physically injured, or had previously engaged in voluntary sexual activity with the accused or another person.

We know the mere fact a person did not say or do anything, did not kick and scream or sustain obvious injuries, does not mean they are untruthful. Rape is not always a violent act. The current amendments will take those directions further by specifying there is no typical or normal response to non-consensual sexual activity. Victims can react in many different ways in response to the trauma of rape.

Just because a person has been drinking alcohol or consuming drugs does not mean they are giving unequivocal consent to sex with anyone at any time. Just because a person is wearing certain clothes does not mean they are sexually available or agreeing to sex. A perpetrator is not always a stranger in a public place. A perpetrator may be a person known to the victim, an intimate partner or a spouse. In fact, an overwhelming majority of perpetrators are not strangers to their victims.

The bill also seeks to amend the Criminal Procedure Act 1921 to require the provision of an expert report to the prosecution in advance of a trial in cases where the defence's intention is to rely on an expert report for the purposes of discrediting the victim in terms of their conduct. I believe this is a very sensible amendment, which has been made at the request of the DPP for very good reasons, and overall I support the additions that have been made by the Attorney-General in relation to the original proposal in this place.

This bill is another critical step forward in addressing the under-reporting and low conviction rates which have traditionally plagued sexual assault cases. I commend the Attorney for her progressive agenda in this space and note this conversation is far from over. Not only has it been refreshing, it has resulted in fundamental shifts in our laws in line with community expectations. I, for one, think the Attorney has done an exceptional job of advancing those causes.

So we look forward to a shift beyond the scope of this bill from 'No means no' to a 'Yes means yes' affirmative consent model in South Australia. I am pleased to know, from discussions that I have had with the Attorney's office, that they are following the work that is being undertaken in New South Wales very closely and are looking at some future changes, potentially, in South Australia that mirror those laws.

Females are seven times more likely to be a victim of non-consensual sexual activity than males. The interplay between gendered violence and gender equality is clear, and SA-Best is committed to doing our part to rewrite this script. With those words, I indicate our wholehearted support for this bill. I thank those honourable members, also, for their kind words in relation to our previous proposal.

The Hon. R.I. LUCAS (Treasurer) (17:21): I thank honourable members for their contribution in the second reading and their indications of support.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (17:24): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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