Sex offence and consent laws under review

Hannah was only 16 years old when she was subjected to an act of non-consensual sex. 

Despite the deeply rooted feelings of betrayal and disgust, Hannah was at a loss for the exact word which described her assault.

“I didn’t know the term for it,” she says. “But I did know it wasn’t okay.” 

Hannah, whose name has been changed for privacy, is a survivor of what is known as stealthing, the non-consensual removal of a condom during sex. 

Western Australia’s sexual offence laws are currently out of step with the rest of the country. Photo: Gabrielle Becerra Mellet.

Not on any other form of birth control at the time, she says she endured the anxiety of a pregnancy scare in the aftermath of the assault. 

“I didn’t seek help. I told nobody,” Hannah says. “I felt as though nobody would listen to me as I had consented to the intercourse and that’s all they would’ve taken note of.” 

Now 18, she says stealthing was incredibly damaging to her life and is an offence that needs to be more widely discussed. 

“It’s just as valid as any form of sexual assault.” 

Sexual assault survivor Hannah

But for young women such as Hannah, sexual health experts say Western Australia’s laws are failing to protect its survivors. 

Stealthing sits under an internationally disputed ‘grey area’ that exists in the jurisdiction of sexual offence laws. Currently under review by the Law Reform Commission of Western Australia, ‘Project 113’, will consider the need to reform the state’s consent and sexual offence laws. 

In particular, Project 113 review will examine whether the concept of affirmative consent should be reflected in legislation and how consent may be vitiated, through coercion, fraud, deception or ‘stealthing’. 

Attorney General John Quigley says the review is in action to modernise laws and assist the justice process for survivors.

He says consent laws should be placed to protect those vulnerable from sexual assault and act as strong “deterrents” for future offenders.

“The Department of Justice’s end-to-end review will be crucial in determining and fixing issues in the criminal justice system’s treatment of allegations of sexual offending,” he says. 

What is affirmative consent?

Sexual Health Quarters educator Karen Molhuysen defines affirmative consent as the clear, ongoing expression of a yes. 

“Affirmative consent means that both people need to be checking in to make sure they want to be doing what they’re doing and hear a very clear, freely given and enthusiastic yes,” she says.

“The absence of a no cannot be taken as a yes.” 

Watch more on the concept of affirmative consent from the educator. Video: Gabrielle Becerra Mellet.

The Perth-based Sexual Health Quarters clinic is one organisation taking an active part in the Law Reform’s review. As part of a submission to the Commissioner, the non-profit organisation outlined a series of proposals, which included the support of affirmative consent, criminalisation of stealthing and the use of specialised sexual assault courts, specialist judges and prosecutors. 

Molhuysen says the implementation of this legislation does not leave space for perpetrators to claim the absence of a no in their legal defence. 

“This is also a really golden opportunity to prevent abuse and prevent anybody’s experience of unwanted or forced sex and if we have an opportunity to do that; we have to do it,” she says. 

Infographic: Gabrielle Becerra Mellet.

Currently under review, Western Australia remains one of three states in Australia yet to pass affirmative consent laws. The ACT, Tasmania and Victoria have all adopted a model of affirmative consent and have criminalised stealthing. 

A slew of countries around the world have passed similar laws. A 2019 report by Amnesty International identified 12 European countries of out 31 to uphold consent-based definitions of rape. This model classes sex without consent as rape, as opposed to a rape definition based on the use of threats, coercion or force.

Victoria became the most recent Australian state to adopt the law, following a recommendation from the state’s Law Reform Commission. The commission delivered a comprehensive report on Victoria’s sexual offence laws, published in November last year. 

Under section 14.68 of the report, the commission recommended moving towards a stronger model of affirmative consent would send a powerful message to the community, during a time when sexual violence remains far too prevalent. 

WA Centre for Women’s Safety and Wellbeing managing director Dr Alison Evans says the most important part of the proposed model is shifting the burden of proof to the defendant rather than the victim. 

“If you want to engage in sexual activity with another person you need verbalised consent,” she says. 

“It shifts from a no means no to a yes means yes.”

Dr Alison Evans

For Evans, the law will address the highly neglected area of sexual violence in intimate partner relationships. 

She says this subsection of sexual assault is often minimised and dismissed as “bad sex”, however, carry’s significant long-term impacts for an individual’s mental health and well-being. 

Listen to more from Dr Evans.

SHQ educator Karen Molhuysen says the absence of a no can often be the result of a freeze response. 

“That person may be so scared, frightened or unsure that they may not know what to say or how to say it,” she says. “Our position is that everyone has the right to safe and pleasurable sexual activity and the only way to know for sure that both partners want what’s happening is to be very clear with your communication.” 

What is stealthing?

As stealthing is a relatively new legal term, little research exists on its prevalence in communities. A study by the Melbourne Sexual Health Centre in 2018 surveyed 2,883 women and 1,063 men, all of who have sex with men, on their experiences of the act. 

The survey found 32 per cent of women and 19 per cent of men reported experiencing stealthing. Both groups of participants were found to be three times less likely to consider the act as sexual assault, than those who had not experienced it.

Infographic:Gabrielle Becerra Mellet.

Perth clinical psychologist Carolyn Bright says stealthing is steeped in feelings of betrayal, anger and violation. 

“It creates a lot of concern about, ‘have I picked up an STI?’, ‘am I HIV positive?’ Pregnancy is a concern,” she says, “Sometimes in the moment, it’s hard to collect your thoughts. You’re quite activated, emotions are high.” 

Bright says for some of her patients who experienced stealthing, the ramifications had been huge. 

“I can think of several patients where HIV transmission occurred, which really is a life-changing diagnosis,” she says. 

“Despite it is a disease now that is managed very well and there’s lots of great medication to assist, it’s really changed people’s lives not only physically but psychologically.” 

Ms Bright says if stealthing was illegal, it would provide an avenue for those wanting to make a complaint or pursue a legal aspect. 

“It gives them somewhere to go,” she says, “I think it also serves as a deterrent to people who might think about stealthing another person.” 

Despite this, Bright acknowledges the “emotionally taxing” process of managing the criminal justice system as a survivor. She says although sexual assault remains a hard crime to prosecute, it doesn’t mean the system should not try and improve. 

“Although [legislation] might not be the answer to everything, every step we can take to clarify, empower and keep people safe, I think that’s a step in the right direction.” 

Elsewhere in the world, stealthing remains non-criminalised in most countries. Switzerland is one country to recently uphold stealthing as a non-punishable act in its federal court. Last year, the Swiss Federal Supreme Court ruled the act of stealthing does not concern an “incapacity to resist”, and is instead characterised by a person’s, “mistaken belief” that protected sexual intercourse is being practised. 

The judge ruled this mistaken belief was not a consequence of a cognitive, psychological or physical state of weakness, which is precisely what a sexual assault conviction requires, as stated under article 191 of the Swiss Criminal Code. 

In Western Australia, Dr Alison Evans says she is uncertain as to the likelihood that stealthing will be criminalised under our laws.

“I just note some more resistance around [criminalising stealthing] in WA,” she says.

Dr Evans says during conversations with stakeholders, she noticed a degree of pushback to legislation that would see stealthing criminalised. 

“I was just a bit surprised that there’s quite a strong appetite for introducing a model of affirmative consent and less of an appetite by some people in higher places [for] stealthing,” she says. 

Dr Evans says if stealthing were to be criminalised, an education component would be a salient aspect. 

“The word itself, stealthing, there’s not that [public] understanding,” she says. “I think as part of consultations, the onus is on us as a peak body to raise awareness on what stealthing actually is.” 

Not a band-aid fix

Despite the resounding support for reformed consent laws, not all experts agree the legislation will reduce rates of sexual violence. 

Curtin University sexology researcher Giselle Woodley says while legislation is a step in the right direction, the prevalence of sexual assault in the community is unlikely to be countered by this change alone. 

“There’s a lot of research to show harsher penalties don’t deter crimes,” she says. 

Curtin University researcher Giselle Woodley. Photo: Supplied

“Most of these crimes are opportunistic. Most are uninformed or there’s a bit of entitlement going on. The fact there’s sometimes harsher legislation, doesn’t do anything to support the cause.” 

This sentiment is echoed in research on reoffending and recidivism. A report by the Victorian Sentencing Advisory Council stated that research into deterrence shows “imprisonment has, at best, no effect on the rate of reoffending and often results in a greater rate of recidivism”. 

Woodley argues affirmative consent laws will not necessarily help survivors in a legal sense, although this remains to be seen. However, she also says it is crucial to note that the absence of a no does not translate to consent. 

“I think its needs to be added to the debate that an explicit no does not need to be said for it to be sexual assault,” she says, “There’s a lot of confusion about that both for survivors and perpetrators.” 

Woodley continues to say the very nature of affirmative consent is complex, given consent during sex in the majority of cases is often nonverbal. 

She says while it is inherently important to protect future survivors of sexual assault, there is also some validity in the argument affirmative consent can be a “mood killer”.

“This is part of the complexity of affirmative consent laws as to why they are needed and why they are potentially problematic,” she says. 

“I think that sometimes in sexual encounters [consent] is obtained in a nonverbal manner and I don’t think we should necessarily shut that down.” 

While Woodley agreed there is definite room for improvement in the state’s sexual offence laws, affirmative consent potentially overlooked “the nuances of human interaction”. 

“I think [nonverbal communication] is still a valid way to obtain consent and realistically how the majority of consent is obtained between adults,” she says.

Education reform

Across the board, sexual health experts are calling for a holistic approach to consent education, to combat sexual violence. 

Dr Evans says to prevent sexual violence in the community, school cultures must be targeted first. 

“How do you reduce unintended consequences? How do you maximise the outcomes you’re trying to achieve?” she asks.

“That’s where you’ve got to look at your social and cultural context and you can’t just look to the law to change that.” 

Listen to more from sexual health professional Dr Evans.

Justice in and of itself is not necessarily accessible.

Dr Alison Evans

Giselle Woodley says alongside the legislation, there needs to be widespread campaigns and teaching programmes to explain what the terms are. 

As part of the latest 9.0 Australian curriculum changes, a revised program ensured consent education was mandated from pre-primary until year 10. 

The review involved an open public consultation with sexual health professionals and the strengthening of explicit teaching of consent and respectful relationships. 

In a media release on October 11 last year, the Western Australian government announced the endorsement of the 9.0 program in state schools. 

Minister Simone McGurk and Minister Sue Ellery join students as they announce mandatory consent education across WA schools. Photo: Supplied

Women’s Interests Minister Simone McGurk says she is proud WA is one of the “first jurisdictions” to mandate consent education. 

“Evidence shows that early education is a powerful tool in reducing sexual violence which we know can have lifelong consequences.” 

Despite this change, Woodley says there are gaps in the updated program. 

“At the moment in the curriculum, there is no sex education for years 11s and 12s, which is terrible because they are the most sexually active, statistically,” she says. 

Woodley, among many other health professionals, advocates for a whole school approach which incorporates visiting specialists, ongoing training for teachers and sex and consent education weaved into the curriculum of all subjects. 

She also supports balancing consent lessons with the positive aspects of sex. 

“It’s about making sure, although we inform our young people, the curriculum is still lacking information in terms of pleasure, the healthy bits of relationships and the sacredness of sex and the enjoyable bits,” she says. 

Karen Molhuysen says consent needs to be introduced at a primary school level. 

She says this does not need to be linked to sex, but rather reaching the basic concept. 

Listen to more on the importance of education from Karen Molhuysen. Video: Gabrielle Becerra Mellet.

“Consent is asking permission, can I do this, yes or no,” she says, “It’s teaching children their body is theirs and they have a right to voice what they want and what they don’t want with their bodies.” 

She says the current curriculum is not sufficient. “I think that teachers are oftentimes working in isolation,” she says, “They may be very committed but not very well supported. I think that teachers’ curriculums are very crowded and there is a lot of pressure on them.” 

Echoing this sentiment is Curtin University’s Student Guild women’s officer Salwa Kilzi, who calls for the need for more conversations about consent at a tertiary level. 

“There definitely is not enough information being spread about consent and sex in general,” she says. “These conversations should be taught in primary [school], correct terminology should be used and allow teenagers and children to understand their body and their rights.”

What’s next?

Project 113 is currently in the consultation period, with the final report due on July 1, 2023. Subsequently, the report will be published and tabled in parliament. 

Karen Molhuysen says legislators need to understand Western Australia’s sexual offence laws are not good enough. 

“I would like legislators to understand that we need to change our laws to be clear, explicit and simple,” she says, “Affirmative consent legislation will be all of that and it will put the focus on clear, enthusiastic, open communication.

“Survivors of abuse deserve better than this.” 

If this story raised any issues for you, the following support services are available:

Sexual Assault Resource Centre: 6458 1828

1800 Respect: 1800 811 811

Lifeline: 13 11 14

Categories: Health