November 3, 2021
TORONTO — The Supreme Court of Canada (SCC) is expected to hear arguments Wednesday on whether a B.C. man who allegedly ignored a woman’s request to wear a condom during sex should stand trial.
In a one-day hearing, Canada’s top court will consider how “sexual activity” is defined and whether the use of a condom or contraceptives “forms part of the sexual activity a person is consenting to.”
The court will also decide whether failure of a party to advise a sexual partner that a condition of the sexual activity they have agreed to is absent constitutes fraud under section 265(3) of Canada’s Criminal Code.
According to the case summary, Ross McKenzie Kirkpatrick and the complainant met in 2017 and had sex twice one night. The complainant testified that she insisted Kirkpatrick wear a condom prior to them having sex.
However, on the second occasion, Kirkpatrick did not wear a condom, unbeknownst to the complainant, whose identity is protected by a publication ban.
The complainant filed a report with police saying she didn’t consent to sex without a condom and said she would not have done so if asked, according to the summary.
Kirkpatrick was later charged with sexual assault, but a trial judge acquitted him in 2018, ruling that there was no evidence that the complainant had not consented to the sexual activity in question so Kirkpatrick did not act fraudulently.
The complainant appealed the decision and the Court of Appeal for British Columbia “unanimously” ordered a new trial, but for differing reasons.
On the issue of consent, two judges ruled sex with a condom is a “different physical act” than sex without a condom. Therefore, they said the complainant had not consented to the sexual activity in question under section 273.1 of the Criminal Code.
A dissenting judge found that there was evidence that Kirkpatrick had defrauded the complainant, but she agreed with the trial judge that there was no evidence to suggest that the complainant had not “voluntarily agreed to the sexual activity in question.”
In a separate case, the SCC unanimously upheld a sexual assault conviction in 2014 of a Nova Scotia man who tried to trick his girlfriend into becoming pregnant by poking holes in her condoms.
The woman had consented to having sexual intercourse with Craig Jaret Hutchinson on the condition he wear a condom. The high court ruled that Hutchinson’s “condom sabotage constituted fraud” and it deprived the woman of her ability to consent to sex.
However, the SCC concluded that the meaning of the “sexual activity in question” in this case did not include the use of contraceptives. They said they were concerned that making the definition of sexual activity “too broad” would capture situations involving accidents, such as a condom breaking during sex.
Both sides in the Wednesday case are expected to reference the 2014 ruling.
Ashley Major, a lawyer and research associate with the University of Toronto’s International Human Rights Program, told CTVNews.ca that this is an important case regarding issues of consent, fraud and “the many forms that sexual violence takes.”
“The Kirkpatrick case gives advocates the opportunity to argue something that seems incredibly intuitive: there is a difference between consenting to penetration with a condom on and consenting to penetration without a condom on,” Major said in an email Wednesday.
Major said the issue with removing, tampering with or failing to put on a condom that is agreed upon by the involved parties is “greater than just the potential significant health risks it poses.”
“It also goes to the dignity and sexual autonomy of a person,” she said.
In October, the state of California signed a bill into law making it illegal to remove a condom during intercourse without a partner’s verbal consent, also known as “stealthing.”
The new law makes the removal of a condom without consent a sexual assault, and reinforces that the practice “causes long-term physical and emotional harms to its victims,” according to the bill.