The Supreme Court of Canada maintains that sex with a condom is a fundamentally different physical act than sex without a condom, and that condom use may be a condition of consent under sexual assault law.
In a 5-4 judgment on Friday, the top court ruled that if a complainant’s partner ignores the condition that condoms be used, intercourse is non-consensual and violates the complainant’s autonomy and same sex agency. Is.
“When a complainant says: ‘No, not without a condom,’ our law of consent says emphatically, it’s really a ‘no,’ and it hasn’t been reinterpreted to become ‘yes, without a condom. may go,” the decision says.
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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 she wore a condom.
The fact that Kirkpatrick used a condom for the first time having sex led the complainant to assume that he was already wearing a condom when he started having sex for the second time, he told the court – But he wasn’t, which he said he didn’t realize until he ejaculated.
A sexual assault charge against Kirkpatrick was dismissed by a judge who found there was insufficient evidence to proceed with the trial.
In applying the existing two-part test to determine whether there has been a breach of consent in sexual assault cases, the judge found that there was no evidence that the complainant had committed “the sexual activity in question”. had not given consent, nor was there any evidence the defendant was clearly a fraud, which would have diminished the consent.
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Although the reasons for its decision are divided, the Supreme Court unanimously agreed with the BC Court of Appeal’s decision that the trial judge made a mistake when he found no evidence.
The judge, in a 2014 Supreme Court judgment, R. V. Hutchinson, in connection with the intentional use of sabotaged condoms.
In that case, accused Craig Hutchinson confessed to sabotaging a used condom with his girlfriend because he wanted to have a child with her. The complainant, who did not want the child, nevertheless became pregnant and eventually had a miscarriage.
Hutchinson was charged with serious sexual assault, but a trial judge dismissed the charge, and the case went through a series of appeals.
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A majority of Supreme Court justices concluded in the Hutchinson case that consent to “the sexual activity in question” does not include “conditions or properties of bodily function, such as birth control measures or the presence of sexually transmitted diseases.”
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Instead, such cases should be decided using the second part of the trial, which asks whether there has been dishonesty on the part of the accused, and whether the complainant has taken a significant risk of bodily harm, he said. On that basis, he ordered a new trial.
The decision has long been criticized by feminist and legal groups, who say it is a matter of common sense that sex with condoms is different from sex without.
The attorney generals of Alberta and Ontario argued with advocacy groups such as Supreme Court interventionists on that point, emphasizing that the effects of refusing to wear condoms and wearing sabotage condoms are the same.
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For them, Friday’s majority decision, authored by Justice Sheila Martin, is a partial victory.
“We are very pleased with the outcome of the decision,” said Liss Gottel, a scholar on sexual consent at the University of Alberta and a former board chair for the Women’s Legal Education and Action Fund.
But Gottel said the court missed an opportunity to completely overturn Hutchinson’s decision “incorrectly.”
She said this could have avoided a situation where cases involving sabotaged condoms are now more difficult to prosecute than cases involving denial of condom use.
“We think condom sabotage is a form of non-consensual condom removal that should be treated the same way,” Gottel said.
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Instead, Martin writes that Hutchinson’s decision was limited to its specific factual context and will still apply in cases where a complainant discovers after a sexual act that the accused intentionally wore a sabotaged condom.
The minority opinion, with which Chief Justice Richard Wagner concurred, maintains that Hutchinson’s decision is the appropriate lens through which to look at matters involving condom use, such as the presence of condoms as being meaningfully sexual. does not change the type of action.
Judges in the minority would have found some evidence that the complainant had consented to the sexual activity in question, meaning that she agreed to the type of sex that involved both.
But he also said there was some evidence of dishonesty from the omission on Kirkpatrick’s part, such that the judge should not have approved the motion without evidence to dismiss the charge.
Skipping the test as to whether fraud has occurred is problematic, the majority decision says, because for fraud to occur, the court must find that there was dishonesty and there was also a “significant risk of bodily harm.”
“The harms of refusal or removal of non-consensual condoms go beyond a significant risk of serious bodily harm and are far more widespread than the risk of pregnancy and STIs,” Martin’s ruling said.
Leaving condom use out of the consent equation also perpetuates a myth that “real rape” is defined only by physical violence, writes Martin, and excludes certain types of people and certain types of sex from the law. would have been given – such as those who cannot become pregnant, or sexual acts that would not transmit the infection.
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