A New Offence Of Stealthing? The Tension Between Its Harm And The Practical Barriers When Reporting It

Abstract

This paper assesses whether stealthing should be it’s own criminal offence or whether it can remain within the offence of rape. The recent decisions of Campos v R and R v Campos, were the first stealthing cases in New Zealand. We thus want to analyse if following Campos and having stealthing within the offence of rape, should be the prevailing law in New Zealand. Furthermore, as these cases had stealthing occur in the context of sex work, the question is whether Campos can scale well to stealthing when it is not in a commercial setting. The paper discusses two conflicting arguments to answer this question. Firstly, it is apparent that the harm of stealthing is almost identical to the harm of rape and therefore perhaps stealthing should be punished as rape. This is reinforced through the principle of fair labelling as, due to the harms being so similar, it perhaps is not necessary to distinguish the acts. In contrast however, it is found that practically many barriers exist which mean that victims of stealthing are reluctant to report the crimes. These are barriers internally within the victim, within authorities who investigate stealthing claims, and with juries. To mitigate these barriers, we need a new offence of stealthing. This is as a new offence brings societal awareness on stealthing, which will therefore eliminate rape myths, as they are a large part of many of these barriers. Despite both justifications to our question being conflicting, what is decided is that the practical barriers are of too much importance to ignore. Therefore this essay advocates for a new offence. However as different barriers require different actions, a new offence with a maximum sentence of 14 years is decided as a middle ground to help mitigate as many barriers as possible.