Tasmania Outlaws Stealthing, Adds New Strangulation Offense to Criminal Code

On June 6, 2022, the Criminal Code Amendment Bill 2022 (Tas) received royal assent, having been passed by the Tasmanian Parliament in May 2022. The bill amends the definition of “consent” in the Criminal Code Act 1924 (Tas) to specifically provide that a person does not freely agree to sexual intercourse if that person communicates to the other person that a condom must be used and the other person does not use, tampers with, or removes the condom. (Bill cl 4, inserting new sch 1 s 2A(2A) into the Act.) The bill also adds a new offense of non-fatal strangulation into the Criminal Code. (Bill cl 4, inserting new sch 1 s 170B into the Act.) The removal of a condom without a person’s agreement is commonly referred to as “stealthing.” In passing the amendments, Tasmania became the second Australian jurisdiction to make stealthing illegal, after the Australian Capital Territory amended its consent provisions with respect to certain sexual offenses in October 2021. The bill was introduced in March 2022 by the Tasmania minister for justice, Elise Archer. In her second reading speech , the minister explained that Tasmania has an expansive and progressive definition of consent. We led the country in introducing strong reforms to define ‘consent’, by reference to ‘free agreement’. Section 2A incorporates a non-exhaustive list of scenarios in which there can be no free agreement. For example, a person does not freely agree if the person does not say or do anything to communicate consent. The inclusion of a specific provision for ‘stealthing’ into this section will provide even further clarity on free agreement to sexual intercourse, building on the existing strengths around our consent laws. Express recognition of the abhorrent nature of stealthing may assist with education, discourage would-be offenders, and support the making of complaints and prosecutions for sexual offences in appropriate circumstances. . . . . Sexual intercourse without consent is rape. Consent requires free agreement. By clarifying ‘stealthing’ as set out in the Bill meaning free agreement has not been given, we are ensuring there is clarity that stealthing is criminal and it can go to proving a charge of rape. The new stand-alone offense of strangulation provides that “[a] person who intentionally and unlawfully chokes, suffocates or strangles another person is guilty of a crime.” (Bill cl 4, inserting new sch 1 s 170B into the Act.) As explained in a fact sheet on the bill, the crime “must be prosecuted on indictment and carries a maximum penalty of 21 years’ imprisonment.” The minister stated that “[s]trangulation, choking or suffocation is an abhorrent form of violence. It carries risk of serious physical injury and/or death, and can often lead to further family violence behaviour.” She further explained that, until now, assault was the main offense charged for non-fatal strangulation. Strangulation can also be treated as an aggravating factor in sentencing, with the trend being for courts to impose heavier sentences in such cases, compared to sentencing for assaults generally. Accordingly, “the new offence gives ‘strangulation’ clear recognition as serious criminal behaviour, supporting these sentencing trends.”

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