Recently, the Supreme Court of Canada (SCC) issued a ruling about how courts across the country deal with the question of sexual assault in relation to condomless sex. The case, R v Kirkpatrick, 2022 SCC 33, can be read here.
The very short answer: “stealthing” (or non-consensual removal of a condom) is absolutely sexual assault.
The short answer: if Person A consents to sex with Person B only on the condition of a condom being used, and a condom is not used, or is removed by Person B prior to or during sex, Person A has not consented to the sexual activity in question, and Person B may be convicted of sexual assault without the Crown prosecutor needing to prove that Person B acted fraudulently.
The medium answer: it’s a bit complicated, which is why the Kirkpatrick case is some 164 pages long. It turns on that last clause – whether or not the Crown needs to establish fraud in “stealthing” cases.
The relevant sections are in sections 265 and 273.1 of the Criminal Code. This does not cover every issue of consent and non-consent (but a colleague of mine, Mat Schwartz, has written about general consent issues here). I’ve also added emphasis.
Consent
265 (3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
- (c) fraud […]
Meaning of consent
273.1 (1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
Consent
273.1 (1.1) Consent must be present at the time the sexual activity in question takes place.
Prior to R v Kirkpatrick, the leading case on the issue was R v Hutchinson, 2014 SCC 19, which can be read here. In Hutchinson, the complainant C agreed to sexual activity but insisted that the accused, H, wear a condom in order to prevent conception. H poked holes in the condom, which was unknown to C. H and C had sex and C became pregnant.
The Court in Hutchinson ruled that, in order for there to be consent on the part of C, there must be subjective agreement (in C’s mind) to the specific physical act, its sexual nature, and the specific identity of the partner. The Court also ruled that the sexual activity in question does not include conditions or qualities of the physical act (which includes condom use). So, C had – according to the majority – consented to the sexual activity in question. However, the majority also found that H had also committed fraud, vitiating C’s consent and leading to a proper conviction in law. While H would have been convicted by the minority in Hutchinson as well, the minority argued that the complainant agreeing to sex with a condom falls under the sexual activity in question, and that fraud need not be established. Fraud requires evidence of a deception (a dishonest act) and deprivation (exposure of risk of harm), which falls on the Crown to prove beyond a reasonable doubt. As a rule of thumb, the more the Crown has to prove, the harder it is for them to do so, which is why this is important (and hence the 164 pages of discussion in Kirkpatrick).
In Kirkpatrick, the complainant C testified that she made it clear to the accused, K, that she would only agree to have sex with K if he wore a condom. K did not wear a condom when the had sexual intercourse, which was unknown to C. C discovered K had not worn a condom and K was charged with sexual assault. K argued, at trial, that there was no evidence of fraud, as required by Hutchinson.
The SCC split 5-4 about whether Kirkpatrick was distinguishable from Hutchinson. The majority ruled that Hutchinson applies to condom sabotage, but does not apply to situations where an accused person does not wear a condom and the complainant’s consent is conditional on condom use. In other words, in this case, fraud need not be established. The minority disagreed, arguing that Hutchinson covers the factual scenario outlined in Kirkpatrick, and evidence of fraud was still required in order to establish a conviction for sexual assault. That said, however, the minority also found that there was some evidence of fraud on the part of K, and so both the majority and minority would send the case back for K to stand trial on the charge of sexual assault.
Interestingly, there were three SCC jurists who took part in the decisions in both cases, and all three seemed to maintain their positions on whether or not condom usage went to the “heart” of the sexual activity in question. Chief Justice Wagner sided with the majority in Hutchinson and the minority in Kirkpatrick; Justice Karakatsanis and Justice Moldaver sided with the minority in Hutchinson and the majority in Kirkpatrick.
If you have been charged with a sexual assault, and would like to speak to a lawyer about your options, you can contact me to have an initial consultation.
Scott Wilson 