Supreme Court rules on condom use and consent | TBEN News

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Canada’s highest court is expected to rule Friday in the case of a BC man accused of ignoring a woman’s request to wear a condom during sex – a decision that would set an important legal precedent. in terms of consent and assault.

Supreme Court judges will define “sexual activity” and decide whether sex with a condom is a form of sexual activity legally distinct from sex without a condom.

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 that Kirkpatrick wear a condom beforehand.

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

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

Police charged Kirkpatrick with assault, but a judge in BC acquitted him. The judge said there was no evidence that the complainant had not consented and that there was no evidence that Kirkpatrick had acted fraudulently.

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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 intercourse with a condom is legally different from intercourse without a condom and that the complainant had not consented to this. 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 appeals court’s decision should be overturned.

Judges look back on 2014 decision

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

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

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

But the majority said in their decision that the term “sexual activity in question” refers to the 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 rule on condom use that an observer says could clarify a legal gray area. (Justin Tang/The Canadian Press)

The court feared that broadening the definition of sexual activity to include condom use could result in the criminalization of acts that should not take the brunt of criminal law, such as using expired condoms or a particular brand of condom.

Unconsensual removal of condoms during sex is often referred to as ‘stealthing’.

Lise Gotell, a professor in the Department of Gender and Women’s Studies at the University of Alberta, said it’s important to understand the difference between the Hutchinson and Kirkpatrick cases.

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

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

“The law is quite uncertain in Canada at the moment, especially when it comes to circumstances where the condom is not removed fraudulently, where there is simply a refusal to wear a condom,” Gotell said.

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