The Supreme Court of Canada says that sex with a condom is a fundamentally 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 on Friday, the high court ruled that if the applicant’s partner ignores the condition of using a condom, the intercourse is non-consensual and the applicant’s autonomy and equal sexual choice are violated.
“When a complainant states, ‘no, not without a condom,’ our consent law says categorically that that actually means ‘no,’ and cannot be interpreted as ‘yes, without a condom,'” the ruling said.
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A court has ordered a new trial in a British Columbia case in which a complainant told a new sexual partner, Ross McKenzie Kirkpatrick, that she would only have sex if he wore a condom.
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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.
A sexual assault charge against Kirkpatrick was dismissed by a judge who found there was insufficient evidence to proceed with a trial.
Applying the existing two-part test to determine whether consent was violated in sexual assault cases, the judge found that there was no evidence that the appellant did not consent to the “sexual activity in question”, the intercourse itself, nor was there evidence the defendant was expressly deceived, which would vitiate consent.
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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.
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The judge cited a 2014 Supreme Court decision, R. v. Hutchinson, which concerns the use of deliberately sabotaged condoms.
In that case, the defendant, Craig Hutchinson, admitted to sabotaging condoms he used with his girlfriend because he wanted to have a child with her. The applicant, who did not want to have a child, nevertheless became pregnant and eventually had an abortion.
Hutchinson was charged with aggravated sexual assault, but a judge dismissed the charge and the case went through the appeals circuit.
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A majority of Supreme Court justices concluded in Hutchinson that consent to the “sexual activity in question” did not include “conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases.”
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They said such cases should instead be decided using the second part of the test, which asks whether there was dishonesty on the part of the accused and whether the complainant was exposed to a substantial risk of bodily harm. Based on this, they ordered a new case.
The decision has long been criticized by feminist and legal groups, who say it’s a matter of common sense that sex with a condom is different than sex without one.
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The attorneys general of Alberta and Ontario have joined advocacy groups in the dispute over the issue by intervening in the Supreme Court, emphasizing that the effects of refusing to wear a condom are the same as wearing a tampered condom.
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For them, Friday’s majority decision, written by Judge Sheila Martin, is a partial victory.
“We’re very, very happy with the outcome of the decision,” said Liz Gottel, a sexual consent scholar at the University of Alberta and former board chair of the Women’s Legal Education and Action Fund.
But Goethel said the court missed an opportunity to completely overturn Hutchinson’s “misconceived” decision.
She said this would avoid a situation where cases involving tampered condoms are now more difficult to prosecute than cases involving refusal to use a condom.
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“We believe that condom sabotage is a form of non-consensual condom removal that should be treated the same way,” Gothel said.
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Instead, Martin wrote, the Hutchinson decision was limited to its specific factual context and would still apply in cases where the complainant learns after intercourse that the defendant was wearing a knowingly sabotaged condom.
The minority opinion, with which Chief Justice Richard Wagner concurred, said the Hutchinson decision remains the appropriate lens through which to view cases involving condom use, so that the presence of a condom does not significantly change the type of sexual act that takes place performs.
The justices in the minority would have found some evidence that the appellant consented to the sexual activity in question, meaning that she consented to the type of sex the two were having.
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But they also said there was some evidence of dishonesty due to an omission on Kirkpatrick’s part, so the judge should not have granted a no-evidence motion to dismiss the charge.
Leaving the test for whether or not fraud occurred is problematic, the majority decision said, because for fraud to occur the court must find that there was dishonesty and that there was also a “substantial risk of bodily harm “.
“The harms of refusing or removing a condom without consent go beyond the significant risk of serious bodily injury and are far broader than the risk of pregnancy and STIs,” Martin’s ruling said.
Leaving condom use out of the equation of consent itself would also perpetuate the myth that “true rape” is defined only by physical violence, Martin wrote, and would leave certain types of people and certain types of sex outlawed — such as people who don’t can become pregnant, or sexual acts that would not transmit infection.
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