OTTAWA – The Supreme Court of Canada says that sex with a condom is a fundamentally different physical act than sex without a condom, and that use of a condom can be a condition of consent under sexual assault law.
In a 5-4 decision on Friday, the top court ruled that if a complainant’s partner ignores the condition that a condom be used, the sexual relationship is non-consensual and the complainant’s autonomy and equitable sexual agency have been violated.
“When a complainant says, ‘no, no condom,’ our consent law says, emphatically, that it really means ‘no,’ and cannot be reinterpreted to mean ‘yes, no condom,’” the decision says.
the court ordered a new trial in a British Columbia case in which a whistleblower told a new sex partner, Ross McKenzie Kirkpatrick, that she would only have sex if he used a condom.
The fact that Kirkpatrick used a condom the first time they had sex led the complainant to assume that he was already using one when he initiated sex a second time, he told the police. court – but he wasn’t, which she said he didn’t realize until he ejaculated.
A judge dismissed a sexual assault charge against Kirkpatrick, determining there was not enough evidence to proceed with a trial.
Applying the existing two-part test to determine whether consent has been violated in sexual assault cases, the judge found that there was no evidence that the complainant had not consented to “the sexual activity in question,” sexual intercourse itself, nor was there evidence the defendant was explicitly misleading, which would have undermined consent.
Although the reasons for his decision are divided, the Supreme Court unanimously agreed with the BC Court appeal that the trial judge was wrong in not finding evidence.
The judge had relied on a 2014 Supreme Court decision, R.v. Hutchinson, referring to the use of deliberately sabotaged condoms.
In that case, the defendant, Craig Hutchinson, confessed to sabotaging the condoms he was using with his girlfriend because he wanted to have a child with her. The author, who did not want to have a child, became pregnant and eventually had an abortion.
Hutchinson was charged with aggravated sexual assault, but a trial judge dismissed the charge and the case went on to appeal.
A majority of Supreme Court The judges concluded in the Hutchinson case that consent to the “sexual activity in question” does not include “conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases.”
Instead, they said, such cases should be decided using the second part of the test, which asks whether there has been dishonesty on the part of the accused and whether the complainant has incurred a significant risk of bodily harm. On that basis, they ordered a new trial.
The decision has long been criticized by feminist and legal groups who say it is a matter of common sense that sex with a condom is different from sex without a condom.
Attorneys general from Alberta and Ontario joined advocacy groups in making that point as interveners in the Supreme Courtemphasizing that the effects of refusing to use a condom versus using a sabotaged condom are the same.
For them, Friday’s majority decision, written by Judge Sheilah Martin, is a partial victory.
“We are very, very happy with the outcome of the decision,” said Lise Gotell, a scholar on sexual consent at the University of Alberta and former board chair of the Women’s Legal Action and Education Fund.
But Gotell said that court missed the opportunity to overturn the “ill-decided” Hutchinson ruling entirely.
She said it would have prevented a situation where cases involving sabotaged condoms are now more difficult to prosecute than cases involving refusal to use a condom.
“We believe that condom sabotage is a form of non-consensual condom removal that should be treated in the same way,” Gotell said.
Instead, Martin writes that Hutchinson’s decision was limited to its specific factual context and would still apply in cases where a complainant discovers after a sexual act that the defendant was knowingly using a sabotaged condom.
The minority opinion, with which Chief Justice Richard Wagner agreed, says that the Hutchinson decision remains the appropriate lens through which to view cases involving condom use, so that the presence of a condom does not significantly change the type of sexual act that is taking place.
The minority judges would have found some evidence that the complainant consented to the sexual activity in question, which means that she had agreed to the type of sex that the two had.
But they also said there was some evidence of dishonesty by omission on Kirkpatrick’s part, so the judge should not have approved a no evidence motion to dismiss the charge.
Leaving the test to whether or not fraud has occurred is problematic, says the majority decision, because for fraud to have occurred, a court you need to find that there was dishonesty and that there was also “significant risk of bodily harm.”
“The harms of nonconsensual condom refusal or withdrawal go beyond a significant risk of serious bodily harm and are far broader than the risk of pregnancy and STIs,” Martin’s decision says.
Leaving condom use out of the consent equation itself would also have perpetuated the myth that “real rape” is defined only by physical violence, Martin writes, and would have left certain types of people and certain types of sex outside the law, such as people who cannot get pregnant, or sexual acts that would not transmit an infection.
This report from The Canadian Press was first published on July 29, 2022.