Condom use can be a condition of sexual consent: Supreme Court

Supreme Court says ‘no, no without a condom’ shouldn’t mean ‘yes, without a condom’ in the courtroom

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OTTAWA – The Supreme Court of Canada has said that sex with a condom is a fundamentally different physical act than sex without a condom, and that using a condom can be a condition of consent under the Sexual Assault Act.

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In Friday’s 5-4 decision, the high court ruled that if the plaintiff’s partner ignored the condom use requirement, there was non-consensual intercourse and the plaintiff’s autonomy and equal sexual treatment were violated.

“When a complainant states, ‘no, not without a condom,’ our consent law emphatically states that it actually means ‘no,’ and cannot be translated as ‘yes, without a condom,'” the ruling said.

A court has ordered a new trial in a British Columbia case in which the complainant told new sex partner Ross McKenzie Kirkpatrick that she would only have sex if he wore a condom.

The fact that Kirkpatrick used a condom the first time they had sex led the complainant to believe he was already wearing one when he initiated sex the second time, she told the court – but he wasn’t, which she said she didn’t realize. until he squirted.

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The sexual assault charge against Kirkpatrick was dismissed by a judge who found there was insufficient evidence to proceed with the trial.

Applying the existing two-part test to determine whether consent was breached in sexual assault cases, the judge found that there was no evidence that the complainant did not consent to the “sexual activity in question”, the intercourse itself, nor was there evidence that the defendant was expressly deceptive, which would violated consent.

Although the reasons for its decision are divided, the Supreme Court unanimously agreed with the BC Court of Appeal’s decision that the trial judge erred in finding no evidence.

The judge relied on a 2014 Supreme Court decision, R. v. Hutchinson, which involved the use of deliberately sabotaged condoms.

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In that case, the defendant, Craig Hutchinson, pleaded guilty to sabotaging the condoms he was using with his girlfriend because he wanted to have a child with her. The applicant, who did not want to have a child, nevertheless became pregnant and eventually had an abortion.

Hutchinson was charged with aggravated sexual assault, but a judge dismissed the charge and the case went into the appeals chain.

A majority of Supreme Court justices concluded in the Hutchinson case that consent to “the sexual activity in question” does not include “conditions or characteristics of the physical act, such as contraceptive measures or the presence of sexually transmitted diseases.”

They said such cases should rather be decided using the second part of the test, which asks whether there was dishonesty on the part of the accused and whether there was a substantial risk of bodily harm to the complainant. On that basis, they ordered a new trial.

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The decision has long been criticized by feminist and legal groups, who say it’s a matter of common sense that sex with a condom is different than sex without one.

The attorneys general of Alberta and Ontario joined the advocacy groups in arguing the point as intervenors in the Supreme Court, emphasizing that the effects of refusing to wear a condom versus wearing a tampered condom are the same.

For them, Friday’s majority decision, written by Justice Sheilah Martin, is a partial victory.

“We are very, very pleased with the outcome of the decision,” said Lise Gotell, a sexual consent expert at the University of Alberta and former chair of the board of the Women’s Legal Education and Action Fund.

But Gotell said the court missed an opportunity to completely overturn Hutchinson’s “wrongly decided” sentence.

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She said this would avoid a situation where cases involving tampered condoms are now more difficult to prosecute than cases involving the refusal to use a condom.

“We believe that condom sabotage is a form of involuntary condom removal that should be treated equally,” Gotell said.

Instead, Martin writes, the Hutchinson decision was limited to its particular factual context and would still apply to cases where the complainant discovers after the sexual act that the accused was wearing a knowingly sabotaged condom.

The minority opinion, joined by Chief Justice Richard Wagner, said the Hutchinson decision remains an appropriate lens through which to view cases involving condom use, so that the presence of a condom does not materially change the type of sexual act that occurs.

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The justices in the minority would have found some evidence that the complainant consented to the sexual activity in question, meaning she consented to the type of sex the two were having.

But they also said there was some evidence of dishonesty by omission on Kirkpatrick’s part, so the judge should not have granted the motion to dismiss the charges without evidence.

Retaining the test for whether or not fraud occurred is problematic, the majority decision says, because for fraud to occur, the court must find that there was dishonesty and that there was also a “substantial risk of bodily harm.”

“The harms from the non-consensual refusal or removal of a condom go beyond the significant risk of serious bodily harm and are much broader than the risk of pregnancy and sexually transmitted diseases,” Martin says in his decision.

Leaving condom use out of the consent equation itself would also perpetuate the myth that “actual rape” is defined only by physical violence, Martin writes, and leave certain types of people and certain types of sex out of the law — such as people who can’t get pregnant, or sexual acts that would not transmit the infection.

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