A Swiss court has upheld a 12-month suspended sentence for a man convicted of deliberately removing his condom during sex with an unconsenting partner, a practice known as “stealthing”, that is testing how legal systems across the world can handle such cases.
There is no legal precedent for the practice in Australia, as nobody has taken a case to court.
Swiss prosecutors confirmed the ruling which was reported earlier by Swiss broadcaster SRF.
SRF said the couple had met via dating platform Tinder and agreed to have sex at the woman’s home.
During intercourse the woman refused the man’s request to change to unprotected sex, only to discover later he had in fact removed his condom.
Fearing she might become pregnant or contract disease, she filed charges against the man.
He testified he did not remove the condom on purpose, but refused to submit to tests of whether he was infected with the virus that causes AIDS, the broadcaster said.
In apparently the first case of its kind in Switzerland, the appeals court in Lausanne ruled that the sentence was appropriate while changing the crime involved to defilement from rape, as a lower court had found.
Defence lawyer Baptiste Viredaz submitted to the court a study published this year in the Columbia Journal of Gender and Law on the legal implications of a practice that transforms consensual into non-consensual sex.
“While one can imagine a range of motivations for ‘stealthers’ — increased physical pleasure, a thrill from degradation — online discussions suggest offenders and their defenders justify their actions as a natural male instinct, and natural male right,” the study found.
Mr Viredaz did not immediately respond to requests for comment from Reuters on the case.