Explaining 'stealthing' and the conversation about rape that we need to have
This paper discusses the issue of “stealthing,” a term for non-consensual condom removal during sexual intercourse, in the context of a broader rape culture that is dismissive of sexual crimes, and particularly those that fall in so-called “grey areas” of the law. Stealthing is technically considered rape according to Australian legal experts (Wright in Hack 2017) but is difficult to prosecute as such due to the pervasiveness of socially constructed ideas about rape. I argue that stealthing has escaped discussion for so long because low rape convictions and misleading media narratives contribute to a lack of understanding about what constitutes rape, who perpetrates it, and who it affects. This paper focuses on an experience of stealthing, described to me by an interview participant who was involved in my PhD research about the sexual culture of amateur and semi-professional Australian Rules football, as part of my work looking into the experiences of women who have had sex with footballers. In this paper, I tell her story and connect it to a broader conversation about stealthing, sporting culture, and rape culture that we need to have.
Stealthing; Rape; Australian Rules Football; Sexual Culture; Violence
What is “stealthing”?
“Stealthing” refers to the removal of condoms during sexual intercourse without the knowledge or consent of the other person or people. Stealthing is a term used by communities of people who purposely set out to deceive their sexual partners into having penetrative sex without the use of a condom (Brodsky 2017). These people believe that men have a natural right to “spread their seed” and give each other advice on how to successfully have unprotected sex without the knowledge of the others involved (Brodsky 2017). There are obvious health concerns involved in undertaking such a practice, as well as ethical concerns. Those who practice stealthing submit their sexual partners to risks such as unwanted pregnancy and sexually transmitted infections, including HIV. However, condom use has reduced overall in recent years as panic about HIV has diminished (Flood 2003). Additionally, many men who have sex with women assume that their sexual partners use contraception such as the pill, Implanon, and intrauterine devices and therefore assume the risk of pregnancy is unlikely (Flood 2003).
Practices such as stealthing are clearly unethical and should be prosecuted as rape. However, legal consequences for engaging in these practices are uncommon (Brosdky 2017). This is likely because stealthing occupies what is considered to be “grey areas of consent” and are therefore difficult to prosecute (Fileborn in Hack 2017). “Grey areas of consent” include situations where consent is not considered abundantly clear and often relates to casual sex and the use of drugs and alcohol (Maier 2012). In a time when consent is usually thought to be communicated through physical signals, rather than explicitly and verbally, it is understandable that some confusion might exist (Powell 2008). However, there are examples of supposedly grey areas of consent that are clear ethical violations and constitute sexual assault, including but not limited to stealthing (Wright in Hack 2017). The persistence that these practices exist in grey areas of consent is an example of rape culture.
The practice of stealthing has been the subject of public debate since the term was popularised by Alexandra Brodsky (2017), a legal scholar, who published a paper on the subject which utilised women’s experiences of non-consensual condom removal in order to explain the practice. Brodsky (2017) used these women’s experiences to advocate for a legal definition of sexual assault that would allow stealthing to be prosecuted as rape. Brodsky is concerned with legal definitions of sexual assault, as stealthing would otherwise be lawful in many jurisdictions of the United States of America, where she was writing from. Brodsky (2017) noted that the lack of legal recognition of stealthing as a form of rape meant that her participants were often confused about whether their experiences constituted sexual assault, although they unanimously described a feeling of violation consistent with other survivors of rape. Following my reading of this paper, I felt it was essential to add more survivors’ stories to academic discussions of this issue and continue the discussion that Alexandra Brodsky began, and this is ultimately the purpose of this paper.
Brodsky’s (2017) participants’ feelings are consistent with arguments for the persistence of low reporting rates of rape. Approximately 75 per cent of all rapes in South Australia go unreported as many victims do not believe that they will be taken seriously, are not aware that what has occurred is criminal, or do not want to endure constant reliving of their traumatic experiences in an unfriendly judicial system (Heath 2007, 185). In South Australia, where this research was conducted, a mere 6 per cent of reported cases of rape resulted in a conviction in 2007 (Anderson 2015; South Australian Office of Crime Statistics & Research 2011). Mary Heath (2007) estimates that 1.8 per cent of all rapes in South Australia result in a conviction, and argues that this means that rape essentially remains legal in South Australia. Worldwide, only one case involving stealing has resulted in a conviction at the time of writing, which involved a 12-month suspended sentence in Switzerland (Hack 2017). In Australia, the first legal case concerning stealing is currently before a court in New South Wales (Hack 2017). As access to legal justice is limited for most victims of sexual crimes, it is necessary to focus attention on public attitudes towards rape which may contribute to recognition of stealthing as sexual assault and subsequent low levels of reporting and convictions.
An argument can be made to expand the scope of discussion about stealthing beyond heterosexual realms to include stealthing among men who have sex with men. In my view, this is a necessary discussion that I hope will be explored in detail as more research into this practice is conducted (Klein 2014). However, this paper is limited to a discussion about heterosexual sex as the case study utilised is from a broader project about masculinity, heterosexuality, and sexual cultures in amateur Australian Rules football.
This article discusses one interview from my Ph.D. research in which a participant was a victim of stealthing. Stephanie (a pseudonym) spoke to me because she fit the criteria that I was looking for, in that she was a woman above the age of 18 who had a sexual experience with an amateur or semi-professional footballer. This criterion is extremely broad, a decision that was consciously made in order to understand a better range of sexual experiences in relation to amateur Australian Rules footballers and sporting culture. This article also discusses preliminary survey results taken from a study with male amateur footballers, in order to explain the connection between Stephanie’s story and ideas about consent and sexual assault that are present in the broader football community.
Stephanie responded to a call for female participants who had some form of sexual experience with a footballer. Some women have responded to this call to discuss experiences that constitute sexual assault, as is the case in Stephanie’s story. Consequently, this story may be difficult to read, and readers should exercise caution in order to care for themselves if they are survivors of trauma or particularly sensitive to sexual assault.
Stephanie launched into her story immediately upon meeting me, as if it had been burning on the tip of her tongue and she was itching to talk about it. She was extremely articulate in describing her experience and the feelings of violation that followed. Stephanie responded to being “stealthed” by leaping into action and trying to learn as much about what had happened to her as she could. She was very proactive in getting support for herself and had friends around her who encouraged her in this and offered additional support, although some were reluctant to view her experience as rape despite Stephanie having been advised that her experience could be prosecuted as such. Stephanie stood out in stark contrast in her response to being assaulted in comparison to other women to whom I had spoken who were also raped. Despite this, Stephanie still felt that she was partly to blame for being raped and questioned whether she had experienced this as a form of a “punishment” for engaging in a one-night stand. This speaks to the pervasiveness of social ideas about gender and sex, and particularly rape myths.
Stephanie explained that she had met Chad (a pseudonym), a semi-professional Australian Rules footballer who plays in the South Australian National Football League (SANFL), while on a night out with friends and that she decided to go with him to his house to have sex with him after meeting him that night. She stressed to me that this was the first time she had ever engaged in a one-night stand and explained that she was curious to try it after talking to some of her friends about their experiences earlier in the week.
Stephanie described Chad as leading and expecting her to follow but described this as confidence rather than an expression of perceived dominance. Stephanie felt drunk but still in control of the decision to return to Chad’s home for sex and able and willing to consent to sex. Upon reflection, Stephanie felt that there were some signs that Chad could have been a “wanker” but found their interactions to be fairly standard. Once the two had returned to Chad’s house, however, issues began to arise: “We get back to his house and he was…trying not to use a condom and I was like well, this isn’t going to happen if you haven’t got one. I was very, very clear and then suddenly he miraculously had some [condoms]…”
Stephanie explained that she and Chad had a conversation about using condoms prior to engaging in sex in which she informed him that she did not use oral contraception and was clear about condoms being her preferred method of contraception. Chad left the room following this conversation and asked his housemate, who was also his teammate, for a condom before engaging in sexual intercourse using this condom. However, at some point during sex Chad removed the condom without Stephanie’s consent or knowledge, thus violating the consent she had given under the stipulation that a condom is used, eventually ejaculating inside of her: “…when we were finished he says “Do you use the morning after pill?” and I was like “No I don’t, why? Do I need that?” and he was like “Oh, you’re gonna need it.”
Chad’s actions clearly demonstrate a lack of care for Stephanie’s (and his own) health and wellbeing, as well as a violation of her sexual autonomy. Stephanie described these feelings of violation to me and expressed her frustration at being left with the responsibility of mitigating risks such as pregnancy and sexually transmitted infections following being sexually assaulted. She was particularly frustrated as she experienced ongoing medical issues following the use of the morning after pill, a form of emergency contraception to prevent pregnancy : “….I was infuriated, but I also felt really like, this really weird feeling of being like, it was like numb. I can still feel that when I think about it. Numb is probably the best word to describe it.”
Chad later demonstrated a lack of consideration for the law, after Stephanie contacted him to inform him that stealthing can be considered to be sexual assault : “…I wrote to him and…I said “you know you can leave this on the night but here’s all the things I need to do now…and I have to deal with them because of what you did” and I didn’t get any response and then when I was looking up the legislation it…can actually be rape so I decided to send him this article I had read.”
Chad demonstrated a disregard for Stephanie’s concerns and issues following his actions and dismissed his behaviour by relying on other traits he believes he possesses such as being “hardworking.” It is probable that Chad had refused to identify himself as someone who would commit sexual assault because he did not resemble the kind of person who he sees as a rapist, such as the evil monstrous men depicted in news media cases. He also may not have been worried about being charged with sexual assault because other footballers, like fellow (former) SANFL player Nicholas Murphy, had been acquitted of such charges (Fewster 2016): “The thing that he wrote (to Chad)…was something like “oh I’m a hardworking guy”… so you’re entitled to use another person’s body however you see fit because you work hard?…I work hard too and…I take care of my body and I look after myself…[I]magine how I feel having to now put this morning after pill in my body.”
How does this fit into broader discussions about rape, particularly in relation to football?
The attitude present in Stephanie’s account are emblematic of the general trend in which victims like Stephanie are forced to justify their actions, while perpetrators are reluctant to take responsibility for their actions. Chad’s dismissive attitude is also reminiscent of a wider culture about rape in which members of the general public are quick to dismiss sexual crimes unless they follow a specific narrative. Legal experts argue that stealthing could be prosecuted as a criminal act due to the conditions under which consent was given, but the lack of awareness of stealthing as a form of sexual assault is reflective of a broader conversation about rape that we need to be having (Wright in Hack 2017).
The lack of focus on so-called grey areas of consent is an issue that is not specific to sport but can be observed there due to the special place sport occupies in Australian culture and national identity. As a result, athletes are often afforded automatic respect and are considered important community members and role models. The public is generally reluctant to believe victims who accuse football players of rape as they do not fit the profile of typical rapists that appear in media narratives (Waterhouse-Watson 2009). Similar examples are present in examples of entertainers, politicians, and church officials who are accused of sexual crimes. I argue that a key reason for this is the prevalence of “rape myths” in media narratives about rape which result in members of the community holding false ideas about the nature of rape.
Very few rape cases are tried in court and even fewer result in a guilty verdict (Heath 2007). This means that cases of rape in which the victim was murdered are likely to dominate discussions about rape in the public arena, as convictions are hard to achieve. More common rape cases are committed by people known to the rape survivor, occur in their own homes, and do not result in their deaths (Powell et al. 2013; Ryan 2006). Misunderstandings about rape, however, including the perpetuation of rape myths, mean that members of the public are reluctant to recognise rape when it is not committed by seemingly monstrous men and subsequently do not fit the narrative that they are used to hearing (Daly and Bouhours 2010). The lack of rape convictions inevitably plays a role in public perceptions of what “counts” as rape. Therefore, it is clear that notable and reported cases that result in convictions will also influence public perception. Many people believe rape is committed by monstrous individuals who cannot control their need for sex and so prey on strangers and enact violence on them (Livholts 2008). The most notable sexual crimes that result in conviction and are thus able to “stick” in the public’s memory are cases where the victim, usually female, is murdered. These cases have such a profound effect because they dominate media narratives about rape (Livholts 2008; Serisier 2005).
There are iconic Australian cases that are impossible to forget and are significant in our national memory such as the murder, torture and gang rape of Anita Cobby; the rape and murder of Jill Meagher; and the recent rape and murder of school teacher Stephanie Scott. Although these cases are memorable because of their horrific nature, they are also memorable because they fit within the script of what can be considered “real rape” (Powell et al. 2013; Serisier 2005). The prevalence of enduring rape myths in conjunction with these high-profile cases influence the public perception of what constitutes rape, despite accounting for only a small percentage of all rape cases. This results in the construction of what I have termed “(Un)relatable rapists” and “(Im)perfect victims.” These cases are typified as the perpetrators are seen to be undesirable people to whom the public cannot relate. They often have a criminal past and are constructed as “evil monsters” who are undeserving of any sympathy. Although these people should be held accountable for their heinous actions, the “monster myth” that persists in reporting on these cases influences public perceptions about who commits rape and creates a dichotomy between relatable and unrelatable rapists.
This argument is supported by the lack of public support when rape differs from this narrative, such as when football players are accused of rape. There is an undeniable difference in how media portrays men charged with violent sexual offences, particularly when the victim is also murdered, such as in the cases of Anita Cobby, Jill Meagher, and Stephanie Scott, and how football players who are charged with sexual crimes are represented (Toffoletti 2007; Waterhouse-Watson 2013; 2016). Moreover, reporting of Adrian Bayley, Vincent Stanford, Gary, Michael, and Les Murphy, Michael Murdoch, and John Travers stands in stark contrast and is focused on the details of each individuals’ criminal or socially awkward pasts and described them as “despicable,” “pathetic,” “sadistic,” and “evil” (Koubaridis 2016; Lambert 2016; Meddows 2016).
To date, the only Australian footballer who has been charged and convicted of a sexual offence is Stephen Milne. Stephen Milne was initially charged with rape after he and teammate Leigh Montagna took two women back to their home for sex after a night out. In the course of the evening, the woman who engaged in consensual sex with Montagna found that she had unwittingly been having sex with Milne after the lights in the room were switched on (Waterhouse-Watson 2013). This suggests that others, perhaps team mates or friends, had conspired in the rape of this woman and that the event was considered a joke, something which has been explored in similar settings (Flood 2008). Although Milne was eventually convicted of an offence this can hardly be considered a victory as Milne was initially acquitted of sexual assault in 2004 and was only charged again when it was found that the case was marred by police corruption, intimidation, evidence, and witness tampering (Waterhouse-Watson, 2013). When the case reopened, Milne had already retired from professional football and was able to plead guilty to a lesser charge of indecent assault (Flower, Deery, and Portelli, 2014). This case highlights the importance of the club in narratives about rape as the St Kilda Football Club notably supported Milne throughout his original trial and team members contributed financially to Milne’s defence (Waterhouse-Watson 2013). Milne’s teammates and the St Kilda Football Club, denied that he had done anything wrong (Waterhouse-Watson 2013). His teammate, Leigh Montagna, who was also involved in the incident, was never charged with any crime and continued to play for St Kilda until 2017. Leigh Montagna is the ultimate bystander in this case. At best, Montagna failed to chastise his mate while Milne was assaulting the woman he had just had sex with, at worst he played a more active role in the assault. We will never know what really happened that night, but St Kilda’s unwavering support of Milne and Montagna’s continued playing career speak volumes about the culture of the club.
There is also a dichotomy present in reporting about victims of sexual crimes. The “perfect” victim is often a white middle-class woman who is considered conventionally attractive, is usually married or in a long-term committed relationship, did not know her attacker, was attacked in public, and is often killed during the attack. This “perfect” victim was present in the cases of Anita Cobby, Jill Meagher, and Stephanie Scott. These women embody the feminine ideal, the “good woman,” and are often not subject to criticism, particularly because they are deceased. However, there are other Australian cases in which women were raped and killed that did not capture media attention and garner subsequent public sympathy. The case of Lynette Daley is particularly poignant as she was an Indigenous woman and the representation of her in comparison to women like Anita Cobby, Jill Meagher, and Stephanie Scott stands out in stark contrast. Lynette Daley died as a result of injuries sustained during violent sex acts inflicted on her by multiple men (Ford and Vukovic 2017). Daley was heavily intoxicated at the time and would have been legally unable to consent to these acts according to s 61HA of the Crimes Act 1900 No 40 (NSW), which included lacerations on the outside and inside of her genitals (Ford 2017). Daley’s loved ones had to endure a long wait for criminal justice as her attackers were only charged and convicted in 2017–6 years after her death (Ford 2017). The men responsible were convicted of manslaughter in addition to aggravated sexual assault (Ford 2017). The lack of justice for Lynette Daley would have been particularly frustrating for those who knew her as Daley’s death occurred in a similar time period to the 2012 murder of Jill Meagher whose death inspired massive public reaction, including the 30,000 people who marched to remember Meagher and call for justice on her behalf (Akerman 2013).
Myths about false accusations lead the public to believe that women who accuse high-profile men of rape fabricate allegations for personal gain, despite false allegations accounting for minuscule amounts of rape cases (Franuik et al. 2008). This strategy was used successfully in the Bill Cosby case in the United States of America, and is often used when an Australian footballer is accused of rape (Waterhouse-Watson 2013). Members of the public decry women who have sex with footballers as predatory women who should have known better than to expect footballers to treat them with respect (Mewett and Toffoletti 2008).
Stephanie, whose experience of stealthing is detailed earlier in this article, is a university student who seems to be smart, thoughtful, and outgoing. She is a young white woman in her early 20s and does not resemble stereotypical “football groupies” in any way. In fact, Stephanie was not explicitly aware that her attacker was a footballer until after the assault took place. She told me that she remembered this detail after realising that she had previously matched with this man on the dating app, Tinder, and after seeing the pictures of him playing football attached to his dating profile. However, the stereotype of the predatory football groupie is pervasive and women who accuse footballers of rape endure personal attacks on their own reputation and vitriol from the public, and are also unlikely to access justice in criminal courts as their experiences are often dismissed (Waterhouse-Watson 2013).
Many of the women who have alleged that notable footballers have raped them have maintained anonymity; however, the most telling media portrayal of a woman who was sexually involved with a footballer and alleged to have experienced gendered violence, in this case domestic rather than sexual violence, is the complicated St Kilda Schoolgirl saga. Kim Duthie, known as the St Kilda Schoolgirl, was involved in dubious sexual encounters with a number of AFL football players and ex-footballer Ricky Nixon in 2010 (Cover 2013). Although it seems that most of these encounters were consensual, information was made available about the relationship between Duthie and Nixon that indicates that the relationship was potentially abusive (Cover 2013). Duthie has been discredited by media outlets as having fabricated her story to seek attention or fame and Nixon maintains his innocence. However, there is much speculation that Nixon intimidated Duthie into retracting her previous statements that she had an affair with Ricky Nixon, a much older and married man who had represented football players that Kim Duthie had alleged to have been sexually involved with and that he was violent and controlling towards her (Cover 2013). We may never know what parts of Duthie’s testimony were true but the media narratives about her are still useful for supporting how women who have sex with footballers are constructed, particularly if they allege any wrongdoing on the part of the footballer. Women who have sex with footballers are represented as simultaneously naïve and predatory, drawn to footballers for their fame and wealth, and who “should have known better” if they are raped (Mewett and Toffoletti 2008). The blame is shifted from the perpetrators to the victims in these representations, which instead constructs them as predatory. These representations differ sharply from other victims of rape who were able to access justice through criminal convictions. Anita Cobby, Jill Meagher, and Stephanie Scott represent “perfect victims” and like the men who murdered and raped them, they become iconic examples of rape narratives in media and help to define public perceptions of what rape is.
Community attitudes towards rape in amateur football
In order to give some insight into public perceptions of what rape looks like I utilise preliminary results from a large-scale survey to support the level of confusion about rape myths present in the football community, as well as a disturbing level of subscription to violence-supportive attitudes. I then explain how these rape myths have been applied in the case of a South Australian footballer who was accused of rape. These media narratives likely contribute to considerable confusion about sexual assault amongst amateur and semi-professional footballers in South Australia and a disturbing level of subscription to violence-supportive attitudes that are evident in early survey results. This survey was based on a similar instrument given to AFL players who had completed the Respect and Responsibility training program (Corboz, Dyson, and Flood 2015). This survey asked players to reflect on their knowledge about gender and consent following their training and asked them to respond to several hypothetical scenarios.
The survey tests common stereotypes and asks participants to respond according to how they would act in various scenarios. Importantly and relevant to this paper, the survey also tests rape myths, more commonly referred to as “violence-supportive attitudes.” It is important to remember that rape culture is embedded in gendered power relations and heterosexual dating rituals and expectations (Chung 2005). Of course, a survey instrument will attract broad responses as scenarios such as the above are very much open to interpretation. However, even seemingly simple questions have elicited varied responses. I argue that this variation is due to the amount of uncertainty around sexual relations as the configuration of gendered practices is constantly changing. However, although there is change in what constitutes gender, power relations remain and subversion still has consequences, hence the fear and uncertainty surrounding heterosexual relations. This is important to remember when discussing the interim results from this survey.
As presented below, I discuss results to questions that ask respondents to reflect on the following pervasive rape myths: “rape results from men not being able to control their need for sex;” “can a person give consent if they are drunk?” “women often make false claims of being raped;” and “a woman is more likely to accuse a man of rape if she regrets having sex.” Respondents are 18 years and older, and have played amateur or semi-professional football for at least one season in a South Australian league in the last ten years. Each of the “rape myths” discussed here can be connected to media narratives about rape, especially those specific to football.
The National Community Attitudes to Violence Against Women survey found that 43 per cent of those surveyed agree that violence occurs because the perpetrator demonstrates a lack of control over factors like anger (Webster et al. 2014). Similarly, many Australians believe that men who commit rape were simply unable to control their sexual urges. The football playing community unsurprisingly also subscribes to this myth at a rate of 43.5 per cent of broad agreement. More specific results can be viewed in the above graph. Respondents were more likely to strongly agree with this statement than other questions that tested rape myths. I argue that the “monster myth” plays a significant role in the pervasiveness of this particular idea. Many people in the community believe rape is committed only? by unrelatable men and are unlikely to believe victims who accuse well-loved men with public profiles of rape.
Sex while under the influence is a particularly pertinent point of contention and confusion. Many participants (41.7 per cent of respondents) are unsure about whether or not consent to sex can be given while a person is drunk and how this might vary at differing levels of intoxication. These results speak to a broader issue of confusion about responsibility and consent, particularly men who feel like they have the responsibility of remembering rules about sex and read signs that are not always clear (Burkett and Hamilton 2012). This is exacerbated as consent is most often non-verbal and women often do not feel that they have much power to direct sex and communicate their own desires (Burkett and Hamilton 2012).
This pervasive myth relates to low conviction rates and character assassinations of women who accuse high-profile men of rape. Although false claims account for a minuscule amount of all rapes and all rape cases, people believe these cases occur in much higher instances (Lisak et al. 2010). Women who accuse high-profile men of rape are scrutinised and subject to victim-blaming practices. Many women who charge high-profile men with rape may drop the charges due to intense scrutiny and pressure, or they may pursue the case but not gain a conviction (Daly and Bouhours 2010; Larcombe et al. 2016). It is important to remember though that in these cases, a lack of conviction or a case in which charges are dropped does not necessarily mean that rape or sexual assault was not committed. Rape is notoriously difficult to prove and there is evidence to say that jurors are more likely to be guided in their decisions by the social context of a situation rather than judicial direction and that rape myths can influence police handling of rape cases (Larcombe et al. 2016; Powell et al. 2013; Shaw et al. 2016). Results from this survey show that respondents are confused about the legitimacy of this myth with the highest number of respondents being neither agreeing or disagreeing with the statement (44.8%).
Similarly, this myth relates to mistrust of women who accuse men of rape, and is likely derived from media narratives about women who accuse high-profile men and a low conviction rate. The idea of regret is pervasive and can be found in Anastasia Powell’s (2008) work with young people who expressed their ideas about sex to her. Young women, in particular, discussed the idea of regret in relation to being pressured into doing sexual things they did not want to do, identifying these situations as “…how the whole regret thing happens…” (Powell 2008, 175). This complicates the narrative around regret and false accusations as victims of rape are so often likely to blame themselves at least in part for their rape. Indeed, broader ingrained social ideas certainly contribute to victim-blaming.
Rape myths in action: The Nicholas Lionel Murphy case
Although there are no reported cases of footballers accused of stealthing that can be compared to Stephanie’s experience, we can see examples of SANFL footballers charged with sexual assault that occupy perceived “grey areas of rape,” such as the trial of Nicholas Murphy. Each of the rape myths discussed was present in some way in the trial of SANFL footballers Nicholas Murphy, who was accused of sexually assaulting a woman who was unconscious after having been intoxicated at his friend’s home on Halloween (Fewster 2016). Media portrayal of Murphy was balanced, although his defence during the trial and general demeanour could be considered sexist. The woman who accused Murphy was described Nicholas Murphy was alleged to have digitally penetrated the woman and stated in court that the woman had wanted to engage in a threesome with him and his friend but that he waited until his girlfriend had left the party to initiate sexual contact (Fewster 2016). However, Murphy’s friend has consensual sex with the woman but was not involved in Murphy’s attempt to have sex with her, highlighting inconsistencies in Murphy’s defence such as those in the quote below (Prosser 2016).
“Ms Lake: She was in bed with your mate in your bedroom. She was with your mate, not you?
Ms Lake: And you’ve gone into the bed with her, your mate’s asleep. Is that right?
Ms Lake: It’s not a threesome Mr Murphy, is it?
Murphy: That’s correct.”
(Murphy’s testimony under cross-examination of Prosecutor Julie-Anne Lake as quoted in Prosser 2016.)
It is also notable that the prosecuting lawyer called out what she saw as misogynist and sexist attitudes during the court proceedings, asking Murphy “you don’t like women very much, do you?” (Fewster 2016). The headline, “Former SANFL footballer Nicholas Lionel Murphy tells court alleged rape victim wanted to have a threesome with him and a friend,” plays into the idea that the plaintiff was sexually promiscuous and actively sought him out for sex, categorising her as a predatory woman and football groupie (Fewster 2016; Mewett and Toffoletti 2008). Murphy used this trope as part of his defence, describing how the woman “had discussed not only her ex-boyfriend but also an Advertiser article, stuck to the house’s fridge, detailing his career at South Adelaide” (Fewster 2016) : “I remember getting a football and re-enacting the photo, what was happening in the photo, and they all thought that was quite funny,” he said…“Obviously (the woman) was quite interested in it … she was impressed, asking about my role at South Adelaide….“I informed her I was the captain there.”(Nicholas Murphy as quoted in Fewster 2016.)
This subsequently implies that she alleged Murphy had raped her because she regretted the situation (“a woman is more likely to accuse a man of rape if she regrets having sex”) and that the claim was therefore false (“women often make false claims of being raped”). Although she was described as intoxicated, Murphy claimed that he believed she had consented despite being intoxicated (“can a person give consent if they are drunk?”). She was described as having used alcohol and ecstasy throughout the evening and claims that she was asleep at the time of the alleged assault, which implies that she would have been obviously intoxicated (Fewster 2016). Although Murphy denies that she was asleep, the situation is complicated by use of drugs and alcohol which call the woman’s ability to consent into question. This is indicative of the levels of confusion about whether consent can be given if a person is drunk. Finally, the myth that “rape results from men not being able to control their need for sex” can be found in defences of footballers like Murphy who are accused of rape. The common phrase “boys will be boys” is often applied in these situations. However, this phrase absolves perpetrators of any responsibility and instead lays blame on victims of violence. Moreover, the trivialising of violent behaviour also communicates that such violence is inevitable as “the boys” cannot control themselves and are passive participants in violence who will never be able to change their behaviour.
“That entitlement…I don’t know if he realises that that’s what it sounded like to me and…people can do good and do stuff like this still. I mean its hard for me to separate that in them but I can understand how to his mum he might a really good person…[M]aybe if he could understand that then he could just stop being that bad person and be the good person…How many people treat people like shit and do illegal things and it could have been avoided if they just had like education or something…” (Stephanie)
Why do practices like stealthing go unrecognised as rape?
It is clear from recent criminal cases and early survey results that the football community has a responsibility to set the record straight about rape, especially given the effect their likely acquittals will have on narratives about footballers and rape, and rape more generally. Low conviction rates, misleading media narratives, and public confusion about rape all play a part in public responses to footballers who have been accused of rape, particularly when these crimes are seen to exist in grey areas of consent, like stealthing. Although criminalisation is only one way to understand rape, it seems to have a profound effect on shaping public perceptions of rape as rape myths hold significance for many people. The narrative communicated by these public perceptions means that men like Chad do not see themselves as rapists, and may not recognise the criminal nature of their actions. Women like Stephanie might not see their experiences as assault and recognise that they can pursue criminal justice and will often instead blame themselves. Meanwhile, public perceptions of rape are limited and are unlikely to change as long as conviction rates and media narratives continue to dictate opinion and influence the perpetuation of rape myths. In short, this cycle of popularised falsehoods about rape is rape culture in action. It is important to recognise that rape is not only committed by people who are purely evil and that they may occupy many different roles for different people in their lives. As Stephanie says of Chad in the quote above, perhaps to his mother he is a good person but this doesn’t negate that he raped her. Rape is not black and white, and neither are rapists or rape victims.
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