A number of legislative schemes have addressed the issue of stealthing within the framework of affirmative consent laws, creating provisions that outline circumstances in which consent is withdrawn or negated.
Affirmative consent generally assumes that consent must be given freely and voluntarily, may be withdrawn at any time, and cannot be given in circumstances of misrepresentation, deceit, coercion or similar conduct.
As each jurisdiction approaches the issue differently, the legal position on stealthing varies across Australia. The ACT was the first to introduce to more specifically address it as an offence in 2021, while other states address the conduct through general consent provisions. The law around consent and stealthing is rather novel and still developing, and if you are charged with a sexual offence, it is important that you reach out to obtain legal advice and representation.
Australian Capital Territory
The Crimes Act 1900 (ACT) s67(1) non-exhaustively outlines circumstances in which it may be established that a person does not consent to a sexual act. s67(1)(j) of the Act includes ‘intentional misrepresentation by another person about the use of a condom’.
The ACT was the first jurisdiction to clearly criminalise intentional misrepresentation about the use of a condom or stealthing and was one of the first to deliver a judgement in relation to the offence. In DPP v Ivanovski [2025] ACTSC 237, the ACT Magistrates Court confirmed that misrepresentation about condom use can amount to a lack of consent. Acting Justice Burns commented at [17]:
“All offences of sexual intercourse without consent are serious criminal offences. The seriousness of the present offence is not diminished by the fact that the victim had engaged in consensual sexual intercourse with you prior to removing the condom. All sexual conduct, whether with a sex worker or any other person, must be consensual. It is always open to any party to sexual activity to impose limits on what forms of sexual activity they are willing to engage in.”
New South Wales
Under the Crimes Act 1900 (NSW) s61HI consent must be free, informed and voluntary. The section provides an example that if a person consents to sexual activity with a condom, they are not, by reason only of that, taken to consent to sexual activity without a condom. A change in the circumstance of sexual intercourse should be communicated, or consent may otherwise be considered negated.
Western Australia
In Western Australia there have not yet been amendments to more directly refer to stealthing or the use of a condom and its relevance to consent. Consent is a requirement for sexual intercourse, must be continuous, and can be withdrawn at any time.
Consent is defined within the Criminal Code Compilation Act 1913 (WA) at s 319(2)(a):
“consent means a consent freely and voluntarily given and, without in any way affecting those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit or any fraudulent means.”
The removal of a condom without the other party’s knowledge or consent is potentially a misrepresentation that could be categorised as consent obtained through “deceit or any fraudulent means.”
The interpretation of “deceit” and “any fraudulent means” in s319(2)(a) was considered in Hes v Western Australia [2022] WASCA 151 at [112] and [120]. The Court held that both terms involve an element of dishonesty, explaining that deceit involves inducing a person to believe something false which the accused knows to be false, while “any fraudulent means” captures other forms of dishonest conduct. The Court also noted that, at common law, fraud only vitiates consent where the deception concerns the nature of the sexual act or the identity of the person performing it.
Although the present legislative scheme does not explicitly address stealthing, the removal of a condom without the other party’s consent could reasonably constitute sexual assault, as it involves a dishonest change to the nature of the sexual act to which consent was given. There have not yet been reported prosecutions of such conduct in Western Australia.
Legal advocacy groups have been pushing for reform to Western Australia’s sexual assault laws, strongly recommending the inclusion of laws explicitly prohibiting misrepresentation about condom use or stealthing.
Conclusion
Stealthing is increasingly recognised across Australia as conduct that negates consent and may amount to sexual assault. While some jurisdictions have introduced explicit provisions addressing misrepresentation about condom use, others rely on broader consent laws that still capture the behaviour. As the legal landscape continues to evolve, understanding how each jurisdiction approaches stealthing is essential. Anyone facing allegations or seeking clarity about their rights and obligations should obtain legal advice to navigate this complex and developing area of law.
Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney (02 9696 1361), Canberra (02 5104 9640) and Perth (08 6255 6909) to make an appointment to speak to one of our lawyers.
