Statutes Amendment (Stealthing and Consent) Bill
Wednesday 30 November 2022
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 Consent can be withdrawn at any point and, if consent is given on the basis of the sex being with a working condom, the consent does not apply if there is not a working condom.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.
