Supreme Court rules sex without a condom requires separate consent

Jul 29 2022, 3:47 pm

Editor’s note: This article mentions and discusses accusations of sexual assault.

The Supreme Court of Canada (SCC) has ruled that sex without a condom requires consent, and if done without consent, a person could be guilty of sexual assault.

In a 5-4 decision, the SCC unanimously ordered a new trial for a BC man who was charged with sexual assault for having sex with a woman without a condom after she insisted they use one.

“The Supreme Court rules that when someone is required by their partner to wear a condom during sex but they do not, they could be guilty of sexual assault,” stated the ruling.

The decision sets a legal precedent on consent, sexual assault, and clarifies issues surrounding “stealthing,” a term referring to non-consensual condom removal.

The case revolves around Ross Kirkpatrick and a woman he met online in March 2017.

According to the SCC, the woman agreed to have sex with Kirkpatrick, but only if he wore a condom. The woman’s name is protected by a publication ban.

They had sex twice in one night — Kirkpatrick wore a condom the first time and didn’t wear one the second time. The woman only realized this after intercourse had ended.

The Criminal Code defines consent as “the voluntary agreement of the complainant to engage in the sexual activity in question.”

Kirkpatrick was charged with sexual assault based on these events, which were initially dismissed “due to lack of evidence,” according to a Supreme Court summary.

But in 2020, a BC appeal court ordered a new trial, finding that the first judge shouldn’t have dismissed the charge based on lack of evidence.

Some judges said that consenting to sex with a condom isn’t the same as consenting to it without one, and one judge said Kirkpatrick’s actions amounted to fraud.

That’s when Kirkpatrick appealed to the Supreme Court, an appeal that has been dismissed.

When condom use is a condition for sex, “there is no agreement to the physical act of intercourse without a condom,” stated Supreme Court Justice Sheilah L. Martin in the decision.

“Since only yes means yes and no means no, it cannot be that ‘no, not without a condom’ means ‘yes, without a condom,’” she wrote.

The complainant also provided evidence that she wouldn’t have had sex with Kirkpatrick without a condom, so the SCC has ruled that a new trial is required.

In 2014, Canada’s Supreme Court convicted Craig Jaret Hutchinson of sexual assault for piercing holes in a condom and impregnating a woman he had sex with. In that case, the justices ruled the victim’s consent was nullified by fraud.

With files from Daily Hive Vancouver reporter Megan Devlin. 

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