The Supreme Court of Canada reportedly ruled today that individuals who don’t wear condoms during sex after being told to by their sexual partners can be convicted of sexual assault,
In its decision, the top court ruled that the legal grounds for consensual sex can be violated by “stealthing” or by the act of pretending to use a condom or removing one prior to sex without the partner’s consent.
“Sex with and without a condom are fundamentally and qualitatively distinct forms of physical touching,” Justice Sheilah Martin reportedly wrote in the majority decision.
“A complainant who consents to sex on the condition that their partner wear a condom does not consent to sex without a condom.”
The court ordered a new trial in the case of Ross McKenzie Kirkpatrick, a B.C. man who did not wear a condom during sexual intercourse with the complainant, even though she insisted beforehand that he wear one.
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 said she only realized Kirkpatrick was not wearing a condom when he ejaculated inside her.
The complainant testified that she had not consented to intercourse without a condom.
Although Kirkpatrick was charged by the police with sexual assault, a B.C. judge acquitted him by saying that there was a lack of evidence the complainant had not consented and that Kirkpatrick had acted fraudulently.
In 2020, the British Columbia Court of Appeal unanimously ordered a new trial. Kirkpatrick appealed to the Supreme Court.
On Friday, the top court unanimously dismissed the appeal.
There would be a new trial for Kirkpatrick to determine whether he acted fraudulently in not using a condom, the four justices said in their decision Friday.
In another case, a woman consented to sex with Craig Jaret Hutchinson but, without her knowledge, he pierced holes in the condom he used. The woman became pregnant.
The Supreme Court justices ruled that his condom sabotage constituted fraud.
#CondomUse; #sexualconsent; #SupremeCourtofCanada
