Supreme Court of Canada says ignoring request to wear condom could violate consent

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People who do not wear condoms during sex despite requests from their sexual partners can be found guilty of sexual assault, the Supreme Court of Canada ruled Friday, potentially setting an important legal precedent on the issue of consent.

The decision concerns the case of a Canadian man accused of not wearing a condom against his partner’s wishes.

The complainant, a woman whose name has not been released, says she met Ross McKenzie Kirkpatrick of British Columbia online in 2017. The two met in March of that year for about two hours before decide to have sex. According to the woman’s testimony, she told the accused that she insisted on using condoms, and he agreed.

They met again at his house and had sex twice, the first time with a condom, she told a court in 2018. The second time, according to the Supreme Court, the plaintiff did not know that Kirkpatrick was not wearing no condom as conditions were grim.

Kirkpatrick claimed he asked “is it better than last time?”, in reference to lack of condom use, but the complainant believed he was referring to sex position. He was charged with sexual assault and acquitted in 2018, after the trial judge said there was no evidence the woman had not consented to the physical act of intercourse, regardless of the condom use.

But the British Columbia Court of Appeal ordered a new trial, finding the trial judge erred in dismissing the sexual assault charge due to a lack of evidence. Mr. Kirkpatrick appealed to the Supreme Court of Canada.

Supreme Court of Canada hears case over alleged condom deception

Kirkpatrick asked the judge to enforce the Supreme Court’s decision by a 2014 case to establish the definition of consent. The case of 2014, R v. Hutchinson, involved a woman who only consented to have sex with her boyfriend, Craig Jaret Hutchinson, if he wore a condom. Hutchinson punched holes in the condom and impregnated his girlfriend. He was found guilty of sexual assault and his conviction was upheld by the highest court, with the majority of judges arguing that the condom sabotage constituted fraud.

Mr Kirkpatrick argued that, unlike Hutchinson, there was no evidence of fraud in his case.

But speaking for the majority of the Supreme Court justices, Justice Sheilah L. Martin said that when condom use is a condition of sexual intercourse, “there is no agreement on the ‘physical act of sexual intercourse without a condom’. The condom becomes part of the “sexual activity in question” and should be considered separate and equal to ordinary sexual consent.

“Since only yes means yes and no means no, it is impossible for ‘no, not without a condom’ to mean ‘yes, without a condom,'” Martin wrote.

The court ruled that Hutchinson does not apply to Kirkpatrick, but it still applies in cases of sabotage and condom fraud.

“Condom sabotage and non-consensual condom removal are coercive practices that undermine women’s sexual authority, physical integrity, and right to decide what sexual activity they are willing to engage in,” wrote Canadian lawyers Lise Gotell and Isabel Grant in a research paper on the Kirkpatrick case. “It is deeply troubling that in 2020 we are still trying to determine the role of these practices in establishing consent to sexual activity.”

In May, a woman in Germany was convicted of sexual assault for punching holes in her partner’s condoms. A German court likened the woman’s actions to “stealth” – a slang term for the non-consensual removal of a condom during sex.

In Britain stealth is considered rape, but there has only been one successful prosecution, in 2019, according to the BBC. A California law passed in 2021 made stealth a civil offense, allowing victims to sue perpetrators.

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