Supreme Court rules failure to use condom against partner’s wishes could result in conviction for sexual assault

People who do not wear condoms during sex after their sexual partners tell them to do so can be convicted of sexual assault, the Supreme Court of Canada ruled today.

In a 5-4 majority decision, the high court ruled that “concealment” — the act of pretending to use a condom or removing one before having sex without a partner’s consent — can violate the fundamentals legal for consensual sex.

“Sex with and without a condom are fundamentally and qualitatively different forms of physical touching,” Judge Sheilah Martin wrote in the majority decision.

“A whistleblower who consents to sex on the condition that his partner wears a condom does not consent to sex without a condom.”

The court unanimously ordered a new trial in the case of Ross McKenzie Kirkpatrick, a BC man who did not wear a condom during sex with the complainant, even though she first insisted he use one.

Kirkpatrick met the whistleblower online in 2017 (the whistleblower’s name is protected by a publication ban). The two had sex twice in one night. The complainant said she insisted in advance that Kirkpatrick use a condom.

Kirkpatrick wore a condom the first time they had sex, but did not the second time. The complainant testified that she thought Kirkpatrick had gotten another condom when she turned briefly to the nightstand. The complainant said she only realized Kirkpatrick was not wearing a condom when he ejaculated inside her.

The complainant stated that she had not consented to intercourse without a condom.

Police charged Kirkpatrick with sexual assault, but a BC judge acquitted him. The judge said there was no evidence the whistleblower had not consented or that Kirkpatrick had acted fraudulently.

In 2020, the British Columbia Court of Appeal unanimously ordered a new trial. Kirkpatrick appealed to the Supreme Court.

On Friday, the high court unanimously dismissed the appeal.

The court is divided in reasoning

In the majority decision, Justice Martin wrote that condom use is legally part of the Penal Code’s definition of “sexual activity in question” if it is a condition of consent to intercourse.

Therefore, the complainant had not consented, according to the law, to intercourse without a condom.

“Since only yes means yes and no means no, it cannot be that ‘no, no without a condom’ means ‘yes, without a condom,'” Martin said in the decision.

“If a complainant’s partner ignores its stipulation, the sexual relations are non-consensual and their sexual autonomy and equal sexual capacity have been violated.”

The Supreme Court of Canada in Ottawa on Thursday, June 17, 2021. Court judges unanimously ordered a new trial in the case of a BC man who did not wear a condom during sex despite being asked to , but they were divided in their motives. (Justin Tang/The Canadian Press)

The four concurring judges agreed on the need for a new trial, but disagreed with Judge Martin’s reasoning. Citing a 2014 Supreme Court decision – R. v. Hutchinson – said condom use is not part of the Criminal Code’s definition of “sexual activity in question”.

In the Hutchinson case, a woman consented to having sex with Craig Jaret Hutchinson, but unbeknownst to her, he punched holes in the condom she was using. The woman became pregnant.

Supreme Court justices upheld Hutchinson’s conviction, ruling that his sabotage of the condom constituted fraud.

In their decision Friday, the four judges said a new trial is needed for Kirkpatrick to determine whether he acted fraudulently by not using a condom.

Justices Russell Brown, Suzanne Côté and Malcolm Rowe wrote in their decision that Hutchinson had already established that condom use is not part of “the sexual activity in question” and that the issue with Kirkpatrick was therefore about fraud Chief Justice Richard Wagner agreed.

“Applying Hutchinson to the present case, we conclude that there is some evidence that the complainant consented to the sexual activity at issue, but that a new trial is required to determine whether her apparent consent was vitiated by fraud,” the judges said .

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