The Supreme Court of Canada, in Ottawa, in 2021 Justin Tang/The Canadian Press
If a man does not use a condom during sex, even though his partner requires it, he can be guilty of sexual assault, the Supreme Court ruled on Friday in a decision that scientists and lawyers described as highly significant.
The court’s decision made it clear that sex with a condom and sex without a condom are not the same thing – saying the two acts are “fundamentally and qualitatively different”.
“An applicant who consents to sex on the condition that his partner wears a condom does not consent to sex without a condom,” Justice Sheila Martin wrote for the majority. “Since only ‘yes’ means ‘yes’ and ‘no’ means ‘no’, ‘no, not without a condom’ cannot mean ‘yes, without a condom’.”
In recent years, awareness of condom refusal or removal without consent has increased. The term can refer to a variety of offenses, from a man refusing to wear a condom when asked; you pretend to put on a condom but you don’t; and secretly removing a condom during sex, which is called “stealth.”
In a 2019 study of Canadian university students, among 334 participants who said they had at some point had penetrative sex with a male partner and used a condom, 18.7% said they had experienced a condom being removed without consent.
“There’s a growing public conversation around nonconsensual condom refusal and condom removal, and what we saw today is that the law is catching up to that conversation,” said Kate Feeney, director of litigation at the West Coast Legal Education and Action Fund, which is intervener in the case.
The court decision stems from a sexual assault allegation against Ross Kirkpatrick, a British Columbia 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 date, the two 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 was cited in the court decision.
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 Liz Gottel, a professor of women’s and gender studies at the University of Alberta. “In no other jurisdiction now is there 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.”
A provincial court in British Columbia initially dismissed the charge against Mr. Kirkpatrick, applying a standard from a Supreme Court decision in a sexual assault case known as Hutchinson, in which a man poked holes in condoms without his partner knowing. In that case, the court decided that the woman consented to the “sexual activity in question” but that the consent was obtained by fraud, and upheld the man’s conviction.
The provincial court ruled that because the woman agreed to have sex with Mr. Kirkpatrick, she consented to the “sexual activity in question” and there was no evidence of fraud.
The Supreme Court unanimously ruled in favor of a new trial in Mr. Kirkpatrick’s case.
The Supreme Court decision clarified that the removal of a condom without consent could be assessed under the definition of consent in the Penal Code, rather than by proving the existence of fraud, although it stated that cases specifically involving “condom sabotage” still still to be evaluated through Hutchinson.
“It makes clear that everyone has the right to insist on the use of a condom, and when it’s not used — by any means, deceptive or not — that’s sexual assault,” said Isabelle Grant, a professor at the Allard School of Law at the University of British Columbia.
Although the justices unanimously agreed that a new trial was necessary in the Kirkpatrick case, their reasoning differed, with five siding with Justice Martin and four making separate arguments.
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