CANADA POLITICS The Supreme Court ruled on condom use and consent

The Supreme Court ruled on condom use and consent

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Canada’s highest court is expected to rule Friday in the case of a British Columbian man accused of ignoring a woman’s request to wear a condom during sex – a ruling that could set an important legal precedent on consent and sexual assault.

Supreme Court judges must define “sexual activity” and decide whether sex with a condom is a different type of sexual activity than sex without it.

Ross Mackenzie Kirkpatrick met the plaintiff online in 2017 (the plaintiff’s name is protected by a publication ban). They had two sex in one night. According to the complainant, she insisted in advance that Kirkpatrick wear a condom.
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Kirkpatrick put on a condom the first time they had sex, but not the second time. The applicant testified that she thought Kirkpatrick had received another condom when he turned briefly to the bedside table.

The applicant testified that she had not consented to sexual intercourse without a condom.

Police charged Kirkpatrick with sexual assault, but a British Columbia judge acquitted him. The judge stated that there was no evidence that the applicant had not given consent and no evidence that Kirkpatrick had acted fraudulently.

In 2020, the British Columbia Court of Appeals unanimously ordered a new trial, but the judges gave different reasons for their decisions.

Two judges stated that intercourse with a condom was legally distinct from intercourse without a condom and that the applicant had not consented to the latter. The third judge stated that Kirkpatrick had deceived the applicant by not telling her that he was not wearing a condom.

Kirkpatrick appealed to the Supreme Court, arguing that the appellate court’s decision should be overturned.

Courts to review 2014 ruling

In the November 2021 Supreme Court hearing, both sides in the Kirkpatrick case invoked the 2014 Supreme Court decision, R v. Hutchinson.

In this case, the woman agreed to have sex with Craig Jaret Hutchinson, but without her knowledge, Hutchinson pierced holes in the condom he was using. The woman became pregnant.

Supreme Court judges upheld Hutchinson’s verdict. Most wrote that his condom sabotage constituted a scam and that the woman’s consent was nullified by this hoax.

But the majority stated in their decision that the term “sexual activity in question” refers to the sexual act itself and does not indicate whether a condom is being used.

Supreme Court of Canada in Ottawa, Thursday, June 17, 2021.
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The court will rule on condom use, which one observer said could clear up a gray area in the legislation. (Justin Tang/Canadian Press)

The court said it feared that expanding the definition of sexual activity to include condom use could “lead to the criminalization of activities that should not attract the harsh hand of criminal law,” such as the use of an expired condom or a particular brand of condom.

Removing condoms without consent during sex is often referred to as “sneaking”.

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

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

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

“The law is pretty vague right now in Canada, especially when it comes to circumstances where a condom is not being fraudulently removed, where there is simply a refusal to put a condom on,” Gotell said.

The court is expected to release its decision at 9:45 am ET.

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