Canada’s top court is expected to issue a decision Friday in the case of a BC man accused of ignoring a woman’s request to use a condom during sex, a decision that could set a precedent important law on consent and sexual assault.
Supreme Court justices will define “sexual activity” and decide whether sex with a condom is a different type of sexual activity under the law than sex without.
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 in advance that Kirkpatrick use a condom.
Kirkpatrick wore a condom the first time they had sex, but did not the second time. The complainant testified that she thought Kirkpatrick had gotten another condom when she turned briefly to the nightstand.
The complainant stated that she had not consented to intercourse without a condom.
Police charged Kirkpatrick with sexual assault, but a BC judge acquitted him. The judge said there was no evidence the whistleblower had not consented or that Kirkpatrick had acted fraudulently.
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 sex with a condom is legally different from sex without, and that the complainant had not consented to the latter. 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.
The judges will look back at the 2014 decision
At the November 2021 hearing before the Supreme Court, both sides of the Kirkpatrick case cited a 2014 Supreme Court decision: R. v. Hutchinson.
In that case, a woman consented to have sex with Craig Jaret Hutchinson but, unbeknownst to her, Hutchinson punched holes in the condom she was using. The woman became pregnant.
Supreme Court justices upheld Hutchinson’s conviction. The majority wrote that his sabotage of the condom constituted fraud and that the woman’s consent was voided by this deception.
But the majority said in its 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 issue a decision on condom use that one observer says could clarify a legal gray area. (Justin Tang/The Canadian Press)
The court said it feared that expanding the definition of sexual activity to include condom use could “result in the criminalization of acts that should not attract the heavy hand of the criminal law.” such as using expired condoms or a particular brand of condom.
The non-consensual removal of condoms during sex is often referred to as “stealth”.
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] it’s a case of condom rejection. It’s not a hoax,” Gotell told CBC News.
He said the court’s decision could bring clarity to a legal gray area.
“The law is currently quite uncertain in Canada, particularly when it comes to circumstances where the condom is not removed in a deceptive manner, where there is just a refusal to use a condom,” Gotell said.
The court is expected to release its decision at 9:45 a.m. EDT.