Push for law against removing condom during sex without consent

It’s a deceptive sex act not currently covered by rape laws – and a new report has told the State Government it should be.

Queensland may soon be the second state to legislate against the act of removing a condom without a sexual partner’s knowledge or consent, under a recommendation made by the Women’s Safety and Justice Taskforce.

The nonconsensual removal, known as stealthing, puts women and girls at risk of unwanted pregnancy or sexually transmitted diseases, the taskforce's second Hear Her Voice report detailed.

The recommendation, just one of 188 made by the taskforce – which also recommended other important legal changes, such as decriminalising sex work and scrapping identity protections earlier in the court process of those accused of sex crimes – urged Queensland Attorney-General Shannon Fentiman to amend consent laws to include legislation around stealthing.

The recommendation noted that because a sexual partner consented to sex with a condom, it did not mean the same sexual partner was consensual to sex without a condom.

The recommendation suggested amendments to the Criminal Code’s meaning of consent, to include a legislative example that details the difference between consent given for sexual acts to be performed with, and without, a condom.

If introduced, Queensland would follow in the ACT’s footsteps, after they outlawed stealthing in October 2021.

Queensland Attorney-General and Minister for Women Shannon Fentiman

Worryingly, one in three women and one in five men who have had sex with men had been stealthed, according to a 2018 study by Monash University.

Currently, stealthing falls through the cracks of Queensland’s legal system, with the act intended to be covered under the rape provision of Queensland’s Criminal Code.

However, the taskforce argues the current sexual consent laws fall short of properly prosecuting against stealthing.

Despite the Bar Association of Queensland’s view that stealthing would already be covered and criminalised under the existing law, the taskforce’s report highlighted how inconsistencies in the law have previously made stealthing hard to prosecute.

In March 2011, Southport District Court rejected a defence argument that the practice of stealthing could not reasonably support a prosecution for rape, the report stated.

“The court grappled with the lack of available precedent and resorted to extraneous materials to come to its conclusion,” it said.

The report highlighted that women and girls who had consented to sex only on the basis their male partner wear a condom, were in no way consenting to any sexual activity without one. “Stealthing is rape,” the report stated.

“The taskforce has recommended that the law clearly reflect the reality as experienced by victims.”