A surgeon charged with rape by the Victoria Police after ‘stealthing’ another male doctor while they were having sex has won a court battle to keep treating patients.

Stealthing is the act of removing a condom during sex without consent. Under Victorian law, the non-consensual removal of a condom and continued penetration is classified as rape.

The surgeon was charged in September last year, with one count of rape and one count of sexual assault, according to a report in The Age.

After the incident, the other doctor reportedly raised concerns about being infected with HIV and asked the surgeon to provide tests verifying his HIV-free status. In response, the surgeon blocked his calls and texts.

When the charges were first laid last year, the surgeon had his practising licence suspended by the medical board, yet the ban was lifted after he undertook a battle in the Victorian Civil and Administrative Tribunal.

He is now reportedly free to see patients and practise medicine, despite the rape charges currently making their way through the courts.

According to court documents, the doctor told police he was “very upset” after the experience and asked the surgeon why he had removed the condom.

“[The surgeon] clearly understood he had caused the complainant distress and apologised and reassured him that his health was not at risk,” the documents state.

“In this conversation [the surgeon] admitted to previously having unprotected sex with other men, most recently about six weeks ago, where [the surgeon] had never previously said this.”

After the surgeon was charged, the Medical Board of Australia suspended his registration as a medical practitioner pending the outcome of the charges.

However, the surgeon challenged the suspension in VCAT, which saw the tribunal lift the suspension of the doctor’s registration. The tribunal reportedly found that immediate action against the surgeon was not in the public interest.

The Medical Board is now appealing the decision in the Supreme Court.

recent study undertaken by researchers from Monash University explored the commonality of stealthing, after conducting a cross-sectional survey of both women and men who have sex with men (MSM) attending the Melbourne Sexual Health Centre.

More than 1,000 MSM completed the survey, which found that 19 per cent of them had experienced stealthing, and, as a result, were twice as likely to report having anxiety or depression.

While the majority of those who reported being stealthed considered it sexual assault, they were still three times less likely to consider it as such compared to those who had never experienced it.

Chief Executive of Thorne Harbour Health, Simon Ruth, said “all sex needs to be consensual”, including the kind of sex people have and the strategies people use to protect themselves against HIV.

“Clear communication and negotiation are things gay and bisexual men have been navigating for decades – mutual consent is always essential,” he told the Star Observer.

“The majority of gay and bisexual men are doing the right thing. Stealthing is much less common than people imagine.”

He added that it is important to emphasise that sex without condoms while using PrEP is protected sex.

“Condoms have played a central role in the range of tools available for the prevention of HIV and other STIs,” he said.

“Thankfully we’re in a day and age of biomedical prevention against HIV where PrEP and undetectable viral load are also protected forms of sex.”

Related reading: ‘Stealthing’ is sexual assault, and we need to talk about it

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