(WA) Criminalise Stealthing

Author: Leah McFetridge | Publish date: 26/05/2024

Problem Identification: 

In WA, stealthing may not be illegal.

Section 319 of the Criminal Code Compilation Act 1913 (WA) (the Act) acknowledges consent ‘is not freely and voluntarily given’ if it involves fraudulent or deceitful means; however, the WA Law Reform Commission (LRCWA) reported that ‘it is unclear whether stealthing is covered by the Code’s consent provision.’ 

The LRCWA has highlighted that this ambiguity makes it difficult to prosecute stealthing under current laws and risks leaving victim-survivors without clear legal protection. As a result, victim-survivors may have limited legal recourse, which is known to undermine efforts to prevent and respond to this form of sexual assault.

Context: 

Stealthing refers to the non-consensual and intentional ‘non-use, removal, or tampering’ of a condom during sex. The Scarlet Alliance has said ‘the use of a condom is the contingency factor in the consent - if this is violated, then the resulting offence is rape or sexual assault.’ Stealthing is further known to increase the likelihood of sexually transmitted infections, blood-borne viruses and unwanted pregnancies. A 2018 study at a sexual health clinic in Melbourne found that 1 in 3 women and 1 in 5 men who have sex with men reported having experienced stealthing. Of these individuals, 8% of women and 5% of men believed they acquired a sexually transmitted infection from the assault, and only 1% had reported it to the police. 

The WA Office for Public Prosecutions has indicated to the LRCWA that, under current law, it would be open to prosecuting an accused of stealthing. However, they have also stated ‘the law in this area…[is] uncertain.’ In consultation with the LRCWA, some members of the WA police claimed they consider stealthing an important issue with ‘people frequently seeking to report such conduct’, however believed stealthing wasn’t currently criminalised by the Act. The LRCWA stated:  

‘[Police] did not consider it possible, under the current law, for consent to be conditional: they took the view that a person either consents to a sexual activity (regardless of condom use) or they do not.’

The Centre for Women’s Safety and Wellbeing (CWSW) has strongly recommended that the WA Criminal Code be amended to ‘include stealthing as a circumstance in which consent is negated.’ To do this, the LRCWA has recommended that a subsection be added to the definition of consent in the Act, which states: ‘A person does not consent if they engage in a sexual activity on the basis that a condom is used, and either before or during the activity any other person involved in the activity intentionally removes the condom or tampers with the condom, or the person who was to use the condom intentionally does not use it.’ The LRCWA has stated this could clarify that stealthing is illegal and encourage the reporting and prosecution of stealthing, whilst validating victim-survivors' experiences. 

There is significant domestic precedent for criminalising stealthing. Every other state and territory in Australia has amended their laws to clearly criminalise stealthing (see here: ACT, VIC, QLD, NSW, TAS, NT and SA). This has been done by expanding the definition of consent to include a list of circumstances in which consent is negated. 

Solution Identification: 

Amend section 319(2) of the Criminal Code Compilation Act 1913 (WA) to clarify that consent is negated where a person agrees to sexual activity on the condition that a condom be used, and the other party intentionally removes, tampers with, or fails to use the condom. 

This could clarify that stealthing is a prosecutable sexual offence and help to harmonise legislation across jurisdictions.

Advice:

The WA Attorney-General should amend the Criminal Code Compilation Act 1913 (WA) as specified above at the next opportunity.

Download the 1-Page Brief Here - (WA) Criminalise Stealthing.pdf

Download PDF • 69KB

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Public Support: 

1. Western Australian Law Reform Commission

2. Centre for Women’s Safety and Wellbeing 

3. Australian Law Reform Commission 

Where to go to learn more: 

1. The Australia Institute - Read more about the overwhelming public support to criminalise stealthing here. 

2. Australian Law Reform Commission - The Commission’s 2025 final report assessing justice responses to sexual violence. The report supports LRCWA’s recommendation to criminalise stealthing. Read here.

3. Law Reform Commission Reports - For further information regarding other states criminalising stealthing. See Victoria here, NSW here, QLD here. 

4. Criminal Code Act 1899 (QLD) - QLD amended the criminal code in a similar way recommended by LRCWA. Read here. See also similar examples from ACT, VIC, QLD, NSW, TAS, NT and SA.

Human Perspective:

TW: Sexual Assault (Stealthing)

Emily, a university student in Perth, had always been clear with her partners that her consent to sex depended on condom use. One night, after making that condition explicit, she discovered her partner had secretly removed the condom without her knowledge. Shocked and violated, she wanted to go to the police but hesitated, remembering what had happened to her friend Zoe. When Zoe reported a similar experience of stealthing, a police officer dismissed it as a “misunderstanding,” saying there was little they could do since stealthing wasn’t clearly a crime under Western Australian law. That response left Zoe feeling humiliated and unheard, and made Emily fear she’d face the same. Without legal recognition of stealthing in the Criminal Code Compilation Act 1913 (WA), both women were left without a clear path to justice. To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences, and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.

Conflict of interest/acknowledgment statement: 

N/a

Support 

If your organisation would like to add your support to this paper or suggest amendments, please email Info@foreaustralia.com. 

Reference list: 

1800MyOptions (n.d). What is stealthing, and why is it illegal? Women’s Health Victoria. https://www.1800myoptions.org.au/blog/what-is-stealthing-and-why-is-it-illegal/

Centre for Women’s Safety and Wellbeing. (2023). Response to the Law Reform Commission of Western Australia Discussion Paper Volume 1 https://cwsw.org.au/wp-content/uploads/2023/05/Project-113-Sexual-Offences_CWSW_FINAL.pdf 

Crimes Act 1958 (VIC). (n.d). https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/ca195882/s36aa.html

Crimes Act 1900 (ACT). (n.d). https://www.legislation.act.gov.au/a/1900-40 

Crimes Act 1900 (NSW). (n.d). https://legislation.nsw.gov.au/view/whole/pdf/inforce/2025-05-09/act-1900-040 

Criminal Code Act Compilation Act 1913 (WA). (n.d). https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_218_homepage.html

Criminal Code Act 1983 (NT). (n.d). https://legislation.nt.gov.au/Legislation/CRIMINAL-CODE-ACT-1983

Criminal Code Act 1899 (QLD). (n.d). http://legislation.qld.gov.au/view/pdf/inforce/current/act-1899-009 

Criminal Code Act 1924 (TAS). (n.d). https://www.legislation.tas.gov.au/view/whole/html/inforce/current/act-1924-069  

Criminal Law Consolidation Act 1935 (SA). (n.d). https://www.legislation.sa.gov.au/__legislation/lz/c/a/criminal%20law%20consolidation%20act%201935/current/1935.2252.auth.pdf 

Latimer, R. L., Vodstrcil, L. A., Fairley, C. K., Cornelisse, V. J., Chow, E. P. F., Read, T. R. H., & Bradshaw, C. S. (2018). Non-consensual condom removal, reported by patients at a sexual health clinic in Melbourne, Australia. PLOS ONE, 13(12) https://journals.plos.org/plosone/article/file?id=10.1371/journal.pone.0209779&type=printable

Law Reform Commission of Western Australia. (2022). Project 113 Discussion Paper Volume 1: Objectives, Consent and Mistake of Fact. https://www.wa.gov.au/system/files/2022-12/LRC-Project-113-Discussion-Paper-Vol-1.pdf

Law Reform Commission of Western Australia. (2022). Project 113 Final Report. https://www.wa.gov.au/system/files/2024-08/lrc-project113-sexual-offences-final-report.pdf 

Scarlett Alliance. (2024). Submission to the Australian Law Reform Commission Issues Paper 49 - Justice Responses to Sexual Violence. https://www.alrc.gov.au/wp-content/uploads/2024/09/186.-Scarlet-Alliance.pdf