Sexual consent has been a hot topic over the past few weeks, and with good reason. But while much of the country is preoccupied with milkshakes and tacos, there is a more complex issue under discussion in the ACT Legislative Assembly, relating to the act of "stealthing".
Judging by the blank expressions I see when the term "stealthing" is raised in conversation, its definition is almost certainly not commonly known, but it's time for that to change. "Stealthing" is the non-consensual removal of a condom during an otherwise consensual sexual encounter that was agreed to on the condition that a condom is used. The term itself has been around for at least the last decade, referred to in hushed circles between women and gay and bisexual men who had experienced it first-hand. But like so much of the shifting public awareness of violence and sexual consent, "stealthing" is emerging from the shadows.
In the ACT, the materialisation of "stealthing" in public conversation follows a proposal by the leader of the Canberra Liberals, Elizabeth Lee, to criminalise it as an act that negates consent. For many, it might seem bizarre that this isn't already the case, but it really just reflects the still nascent and at times murky understanding we have as a community of the dynamic nature of consent.
YWCA Canberra have been longstanding advocates for legislative reform where it relates to the legal framework of sexual consent, and participated in the earlier Crimes (Consent) Amendment Bill 2018, giving evidence to incorporate an affirmative definition of consent into the ACT Crimes Act. In the period since this 2018 inquiry, however, consent has received significant attention throughout the public sphere, lifted by those like Grace Tame and Brittany Higgins, women who endured terrible abuse and who have since brought the dynamics of consent into the public consciousness. While this social awakening is welcomed, it is a reminder that neither legislation nor the education setting has kept pace.
To inform our comment to the ACT government on the "stealthing" amendment, we conducted a short survey targeted to young people aged 16 to 24 who were likely to be receiving consent-based education or whose exposure to consent education is sufficiently recent. The survey asked respondents of their awareness of "stealthing", their understanding of the current law and their exposure to and reflections of the sexual consent education they may have received.
Responses to the survey indicate that awareness of "stealthing" among young people was reasonably varied, and while the overwhelming majority of respondents said they had been exposed to some instruction on sexual consent, a much less impressive proportion said the consent instruction they received was sufficiently nuanced to present sexual consent as an evolving and dynamic agreement between parties. Unsurprisingly, the peer networks that young people moved in, their engagement with social media and the sexual experiences of their friends or themselves were foundational in learning about sex and consent.
The very nature of individual sexual development, establishing boundaries and safely exploring pleasure relies heavily on the influence of peer networks. Responses to our survey, however, indicate there remains immense scope for the formal education setting to have a role in facilitating a contemporary understanding of consent and the realities of less overt forms of sexual assault among young people.
I agree with the Minister for Women that legislative reform is only one element when it comes to addressing the inconsistency between the low prosecution rates of sexual assault and the concurrent increase in formal complaints of sexual assault. I go further, however, to argue that understanding how to set the terms of a sexual encounter and facilitating access to justice following an alleged sexual assault demands both a legislative and social response.
For women of my generation, "yes means yes and no means no" was part of our launchpad into feminism, with a mantra that was in hindsight only partially correct. It's somewhat alarming to see the same archaic language being taught to young women and girls multiple generations later, which is what we found from our survey. The reality is, this model of consent is outdated, binary and wholly insufficient. It plays into the myth that if no one says "no", then the sex is consensual. Today, the conversation on consent has moved on to a point where court procedures and directions are being contemporised to better reflect the myriad ways people respond to threats of imminent sexual violence, including freezing or acquiescing to avoid escalating the violence at hand. But what good is this progress if the instruction provided in our formal education settings still consigns young people to a sexual development that is tainted with ignorance and assault?
"Stealthing" occupies a unique position in the dynamics of consent. Because it takes a previously consented-to arrangement (sex with a condom) and changes the terms of that arrangement (sex without a condom), it highlights how consent is an ongoing negotiation, and consenting to one specific act does not imply consent to other acts. By talking publicly about "stealthing", we are compelled to begin talking about consent as an evolving process of mutual pleasure, and boundaries. YWCA Canberra supports the criminalisation of stealthing, but legislative reform cannot be siloed. It is incumbent on government, policymakers and the community to ensure that this reform becomes part of how we approach violence prevention, and that begins with an adequate and contemporary approach to consent education.
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