The Supreme Court of Canada is expected to rule on Friday in the case of a British Columbia man accused of ignoring a woman’s request to wear a condom during sex, a decision that could set an important legal precedent on consent and sexual assault.
Supreme Court justices must define “sexual activity” and rule on whether sex with a condom is a type of sexual activity that is legally different from sex without a condom.
Ross McKenzie Kirkpatrick met the complainant online in 2017 (complainant’s name is protected by a publication ban). They had sex twice in one night. The complainant said she insisted in advance that Kirkpatrick wear a condom.
Kirkpatrick wore a condom the first time they had sex, but not the second time. Appellant testified that she thought Kirkpatrick had gotten another condom when he briefly turned to the nightstand.
The appellant testified that she did not consent to intercourse without a condom.
Police charged Kirkpatrick with sexual assault, but a British Columbia judge acquitted him. The judge said there was no evidence the appellant did not consent and no evidence Kirkpatrick acted fraudulently.
In 2020, the British Columbia Court of Appeal unanimously ordered a new trial — but the judges gave different reasons for their decisions.
Two of the judges said that sex with a condom was legally different from sex without a condom and that the appellant had not consented to the latter. A third judge said Kirkpatrick had deceived the complainant by not telling her he was not wearing a condom.
Kirkpatrick appealed to the Supreme Court, arguing that the Court of Appeal’s decision should be set aside.
Justices to look back on 2014 decision
At the Supreme Court hearing in November 2021, both sides in the Kirkpatrick case cited a 2014 Supreme Court decision — R. v. Hutchinson.
In that case, a woman consented to sex with Craig Jarrett Hutchinson, but without her knowledge, Hutchinson punched holes in the condom he was using. The woman became pregnant.
Supreme Court justices upheld Hutchinson’s conviction. The majority wrote that his condom sabotage constituted fraud and that the woman’s consent was voided by that fraud.
But the majority said in its decision that the term “sexual activity in question” refers to the sexual contact itself — and does not specify whether a condom was used.
The Supreme Court of Canada in Ottawa on Thursday, June 17, 2021. The court will issue a ruling on condom use that one observer says could clarify a legal gray area. (Justin Tang/The Canadian Press)
The court said it feared that expanding the definition of sexual activity to include the use of a condom could “lead to the criminalization of acts which should not attract the heavy hand of the criminal law” – such as using expired condoms of shelf life or a certain brand of condoms.
Removing condoms without consent during sex is often called “stealing.”
Liz Goethel, a professor in the Department of Gender and Women’s Studies at the University of Alberta, said it’s important to understand the difference between the Hutchinson and Kirkpatrick cases.
“[Kirkpatrick] is a case of condom refusal. It’s not a hoax,” Gothel told CBC News.
She said the court’s decision could bring clarity to the legal gray area.
“Currently, the law in Canada is quite uncertain, particularly when it comes to circumstances where the condom is not fraudulently removed, where there is simply a refusal to wear a condom,” Gottel said.
The court is expected to announce its decision at 9:45 a.m. EDT.
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