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People who do not wear condoms during sex despite their sexual partners’ pleas to do so can be convicted of sexual assault, the Supreme Court of Canada ruled Friday, potentially setting an important legal precedent on the issue of consent.
The decision involves the case of a Canadian man accused of not using a condom against his partner’s wishes. Lawyers and rights advocates hailed the decision as “significant” and “foundational for the right to sexual autonomy”.
“This is an important development for women and others who have sex with men,” said Isabelle Grant, a law professor at the University of British Columbia who specializes in intimate partner violence against women and sexual violence.
“The decision is internationally significant,” she said. “There is now a clear statement in Canadian law that theft – the fraudulent removal of a condom during sex – constitutes sexual assault.”
The complainant in the case, a woman whose name has not been made public, says she met Ross McKenzie Kirkpatrick of British Columbia online in 2017. The two met in March of that year for about two hours before deciding to have sex. According to the woman’s testimony, she told the accused that she insisted on using condoms and he agreed.
They met again at his house and had sex twice, the first time with a condom, she told the court in 2018. The second time, according to the Supreme Court, the appellant did not know Kirkpatrick was not wearing a condom because the conditions were dark.
Kirkpatrick claimed he asked “does it feel better than last time?” in reference to not using a condom, but the appellant believed he was referring to the sexual position. He was charged with sexual assault and acquitted in 2018 after the judge said there was no evidence the woman did not consent to a physical act of sexual contact, regardless of the use of a condom.
But the British Columbia Court of Appeal ordered a new trial, finding the first judge erred in dismissing the sexual assault charge for lack of evidence. Mr. Kirkpatrick appealed to the Supreme Court of Canada.
The Supreme Court of Canada is hearing a case over an alleged condom scam
Kirkpatrick asked the judge to implement the Supreme Court ruling 2014 case establishing the definition of consent. The case of 2014 R v Hutchinson, involved a woman who agreed to have sex with her boyfriend, Craig Jarrett Hutchinson, only if he wore a condom. Hutchinson punched holes in a condom and got his girlfriend pregnant. He was convicted of sexual assault and his conviction was upheld by the high court, with a majority of judges holding that the condom tampering constituted fraud.
Mr Kirkpatrick argued that, unlike Hutchinson, there was no evidence of fraud in his case.
But speaking for the majority of Supreme Court justices, Justice Sheila L. Martin said that when the use of a condom is a condition of intercourse, “there is no consent to the physical act of intercourse without a condom.” The condom becomes part of the “sexual activity in question” and must be considered separately and with equal weight to ordinary sexual consent.
“Since only ‘yes’ means ‘yes’ and ‘no’ means ‘no’, ‘no, not without a condom’ cannot mean ‘yes, without a condom,'” Martin wrote.
Pam Hrick, executive director of the Women’s Legal Education and Action Fund, said the decision “is an important statement that sexual partners must respect the decision to insist on the use of a condom during sex.”
She added: “This is fundamental to the right to sexual autonomy and equality.”
The court ruled that Hutchinson does not apply to Kirkpatrick, but still applies in cases involving condom sabotage and fraud.
In May, a woman in Germany was found guilty of sexual assault for punching holes in her partner’s condoms. A German court likened the woman’s actions to theft.
In Britain, theft is considered rape, but there was only one successful prosecution in 2019, according to the BBC. A California law passed in 2021 made theft a civil offense, allowing victims to sue perpetrators in court.
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