The Supreme Court of Canada says that sex with a condom is a different physical act than sex without one, and that using a condom can be a condition of consent under sexual assault law.
In a 5-4 decision today, the high court said that “no, no without a condom” should not count as “yes, without a condom” in a courtroom.
A court has ordered a new trial in a British Columbia case in which a complainant told a new sex partner, Ross McKenzie Kirkpatrick, that she would only have sex with him if he wore a condom.
The fact Kirkpatrick used a condom the first time they had sex led the complainant to assume he was already wearing a condom when he initiated sex the second time, she told the court – but he wasn’t, which she said she didn’t realize until he ejaculates.
The sexual assault charge against Kirkpatrick was dismissed by a judge who found there was no evidence the complainant did not consent to the “sexual activity in question” nor that the defendant was specifically deceived, which would have been an alternative conviction.
Although the reasons for its decision were divided, the Supreme Court unanimously agreed with the British Columbia Court of Appeal’s decision that the trial judge erred in finding a lack of evidence.
Our Morning Update and Evening Update newsletters are written by Globe editors, giving you a quick summary of the day’s top headlines. Sign up today.
Add Comment