In Campos v R [2022] NZCA 311, July 13, 2022, the Court of Appeal considered the issue of sentencing in a “stealthing” case (i.e., the act of removing a condom during sexual intercourse where the consent to sexual intercourse by one partner is conditional on the other partner wearing a condom throughout).

The offender had “removed his condom while having what, until that point, had been consensual sex with a sex worker at a brothel” (at paragraph 2).

In upholding the sentence of three years and nine months imprisonment imposed by the trial judge, the Court of Appeal, stated (at paragraph 27):

Here, there was never any consent to the particular act which constituted rape. The victim consented to protected sex. She never consented to unprotected sex. She told Mr Campos that he must wear a condom and he was aware that her consent was conditional on that basis. Him removing the condom and penetrating the victim is a positive and different act by the offender, which sets it aside from a withdrawn consent case where the offender’s act is the same but the state of affairs is changed by the victim’s withdrawal of consent. Against such a background, Mr Campos’ actions in taking the condom off and continuing sexual intercourse to ejaculation was a deliberate, even cynical, breach of the parties’ understanding of the basis on which consent was given. Mr Campos knew his conduct fell beyond the boundaries of the victim’s consent.