Supreme Court set to rule on condom use and consent

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Canada’s top court is expected to issue a decision Friday in the case of a B.C. 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 are set to define “sexual activity” and rule on whether sex with a condom is a type of sexual activity distinct in law from sex without one.

Ross McKenzie Kirkpatrick met the complainant online in 2017 (the complainant’s name is protected by a publication ban). The two had sex twice in one night. The complainant said she insisted beforehand that Kirkpatrick wear a condom.

Kirkpatrick wore a condom the first time they had sex but did not the second time. The complainant testified that she thought Kirkpatrick had gotten another condom when he briefly turned to the bedside table.

The complainant testified that she had not consented to intercourse without a condom.

Police charged Kirkpatrick with sexual assault but a B.C. judge acquitted him. The judge said there was no evidence the complainant had not consented and no evidence that Kirkpatrick had 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 sexual intercourse with a condom is legally distinct from sexual intercourse without one, and that the complainant had not consented to the latter. A third judge said Kirkpatrick defrauded the complainant by not telling her he wasn’t wearing a condom.

Kirkpatrick appealed to the Supreme Court, arguing that the appeal court’s decision should be thrown out.

Justices to look back on 2014 decision

In the November 2021 hearing before the Supreme Court, both sides of the Kirkpatrick case cited a 2014 Supreme Court decision — R. v. Hutchinson.

In that case, a woman consented to sex with Craig Jaret Hutchinson but, without her knowledge, Hutchinson pierced holes in the condom he used. The woman became pregnant.

The Supreme Court justices upheld Hutchinson’s conviction. The majority wrote that his condom sabotage constituted fraud and that the woman’s consent was nullified by that deception.

But the majority said in their decision that the term “sexual activity in question” refers to the sexual intercourse itself — and does not specify whether a condom is used.

The Supreme Court of Canada in Ottawa on Thursday, June 17, 2021. The court will issue a decision on condom use that one observer says could clarify a legal grey area. (Justin Tang/The Canadian Press)

The court said it feared that broadening the definition of sexual activity to include condom use could “result in criminalization of acts that should not attract the heavy hand of the criminal law” — such as using expired condoms or a particular brand of condom.

The non-consensual removal of condoms during sex is often referred to as “stealthing.”

Lise Gotell, a professor in the University of Alberta’s department of gender and women’s studies, said it’s important to understand the difference between the Hutchinson and Kirkpatrick cases.

“[Kirkpatrick] is a case of condom refusal. It’s not deception,” Gotell told CBC News.

She said the court’s decision could bring clarity to a legal grey area.

“The law currently is quite uncertain in Canada, especially when it comes to circumstances where the condom is not removed deceptively, where there’s just a refusal to wear a condom,” Gotell said.

The court is expected to release its decision at 9:45 a.m. EDT.



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