The Supreme Court of Canada ruled Friday that condom use can legally be a condition for sexual consent in a ruling that could set an important legal precedent on consent and sexual assault.
In a 5-4 decision, the majority said condom use as a condition of consent is part of “the sexual activity in question,” as defined by the Penal Code.
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 previously 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, but on Friday, the Supreme Court unanimously dismissed the appeal.
The court is divided in reasoning
In the majority decision, Justice Sheilah Martin wrote that condom use, if a condition of consent to intercourse, is legally part of “the sexual activity in question” as defined by the Penal Code .
Therefore, the complainant had not consented, according to the law, to intercourse without a condom.
“Sex with and without a condom are fundamentally and qualitatively different forms of physical touching,” Martin wrote. “A whistleblower who consents to sex on the condition that his partner wears a condom does not consent to sex without a condom.”
The four dissenting justices said in their decision that condom use is not part of “the sexual activity in question,” citing a 2014 Supreme Court decision, R. v. Hutchinson. They said a new trial was needed to determine whether Kirkpatrick had acted fraudulently by failing to use a condom.