The Supreme Court of Canada in Ottawa in 2021. Justin Tang/The Canadian Press
If a person does not use a condom during sex even though his partner demands it, he could be guilty of sexual assault, the Supreme Court ruled Friday in a decision that scholars and lawyers consider extremely significant.
The court’s decision makes it clear that sex with a condom and sex without a condom are not the same, stating that the two acts are “fundamentally and qualitatively different.”
“A complainant who consents to intercourse on the condition that his partner wears a condom does not consent to intercourse without a condom,” Judge Sheilah Martin wrote for the majority. “Since only yes means yes and no means no, it cannot be that ‘no, no without a condom’ means ‘yes, without a condom’.”
In recent years, awareness of non-consensual condom refusal or removal has increased. The term can refer to a variety of violations, from a man refusing to wear a condom when asked; pretending to put on a condom, but not doing it; and secretly removing a condom during sex, which has become known as “stealth.”
In a 2019 study of undergraduate students at a Canadian university, among the 334 participants who said they had at some point had penetrative sex with a male partner and used a condom, 18.7% say they had experienced non-consensual condom removal.
“There is a growing public conversation about non-consensual condom rejection and condom removal, and what we saw today is the law catching up with that conversation,” said Kate Feeney, the Fund’s director of litigation. of Action and Legal Education of the West Coast, which intervened in the case.
The court’s decision stems from a sexual assault charge against Ross Kirkpatrick, a BC man who in March 2017 met with a woman to discuss the possibility of having sex. During that conversation, the woman, whose identity is protected by a publication ban, said she made it clear she would only have sex with him if he used a condom.
On their second meeting, the couple had sex twice. The first time, Mr. Kirkpatrick used a condom. The second time, the woman thought he had put on a condom, but when he ejaculated inside her, she realized he hadn’t, according to the woman’s testimony, which the court decision refers to.
Several experts told The Globe that Friday’s decision sets an important precedent in Canada, and potentially beyond.
“It’s certainly important for women in this country, it’s also important internationally,” said Lise Gotell, a professor of women’s and gender studies at the University of Alberta. “In no other jurisdiction is there now such clarity in the law that when you consent to sex with a condom, you are not consenting to sex without. … This is an incredibly important decision.”
Initially, a provincial court in British Columbia dismissed the charge against Mr. Kirkpatrick, applying a rule from a Supreme Court decision in a sexual assault case known as Hutchinson., in which a man punched holes in condoms without his partner knowing. In that case, the court ruled that the woman had consented to the “sexual activity in question” but that the consent was obtained by fraud, and upheld the man’s conviction.
The provincial court decided that since the woman agreed to have sexual relations with Mr. Kirkpatrick, accepted the “sexual activity in question” and there was no evidence of fraud.
The Supreme Court decided unanimously in favor of a new trial in the case of Mr. Kirkpatrick.
The Supreme Court’s ruling makes it clear that the nonconsensual removal of a condom can be evaluated under the Penal Code’s definition of consent, rather than proving the existence of fraud, although it states that cases specifically involving “sabotage of condom” have yet to be rated through Hutchinson.
“It’s making it clear that everyone has the right to insist that a condom be used, and when it’s not used, whether by any means, deceptive or not, that’s sexual assault,” said Isabel Grant, a teacher at the School of Allard. Law at the University of British Columbia.
Although the justices unanimously agreed that a new trial was needed in the Kirkpatrick case, their reasoning differed, with five siding with Justice Martin and four making a separate argument.
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