Canada Supreme Court in a landmark judgment R. v. Kirkpatrick, 2022 SCC 33, rules with a 5-4 majority that it is a crime to renege on a promise to wear a condom during sex without a partner’s knowledge or consent. In other words, when someone is required by their partner to wear a condom during sex yet they do not, they could be held guilty for sexual assault. The court elaborated on the definition of consent in Section 273.1(1) of the Criminal Code.
- In this case, the complainant and Ross Kirkpatrick met online, later in person, and the former consented to have intercourse with the latter on the condition that he wears a condom. During one of two sexual encounters at that meeting, the accused man didn’t wear a condom, unknown to the woman who only realised after he ejaculated inside her and later took preventive H.I.V. treatment.
- Kirkpatrick was charged with sexual assault. His counsel relied on the Supreme Court’s 2014 ruling in R. v. Hutchinson, wherein the court established a test for analysing consent. The case also involved a woman who predicated her agreement to sex on the use of a condom. However, the accused pierced holes in the condom without the complainant knowing. The court noted that the accused obtained the complainant’s consent by fraud, contrary to section 265(3)(c) of the Criminal Code, since the accused had tampered with the condom. In the present case, Mr. Kirkpatrick argued that the complainant agreed to have sexual intercourse, like in Hutchinson, but he said there was no evidence of fraud, unlike in Hutchinson. Therefore, he sought to have the charge dismissed by bringing a no-evidence motion. In 2018, he was acquitted by the trial judge, however, in 2020, the court of appeal unanimously held that the trial judge had erred in finding that the complainant had consented. The court of appeal setting aside the acquittal, ordered a new trail.
Kirkpatrick appealed the setting aside of his acquittal to the Canadian Supreme Court, which dismissed his appeal. Justice Sheilah Martin wrote in the majority opinion:
“When consent to intercourse is conditioned on condom use, the only analytical framework consistent with the text, context and purpose of the prohibition against sexual assault is that there is no agreement to the physical act of intercourse without a condom.”
“Condom use cannot be irrelevant, secondary or incidental when the complainant has expressly conditioned her consent on it.”
- Martin continued and stated that “[someone] who consents to sex on the condition that their partner wear a condom does not consent to sex without a condom” and if the partner ignores the condition, “the sexual intercourse is non-consensual.”
- Studies have shown that the condom-use resistance has become widespread over the past decade, and a significant number of women and men report having men report having their partners removing condoms without their consent. This practice is known as “stealthing” and has become prevalent enough that some Canadian universities have incorporated it into their sexual violence prevention policies. California Gov., last year, even signed a bill into law which made stealthing illegal. Around the same time, the Legislative Assembly in the Australian Capital Territory, which includes Canberra, also passed new laws that define stealthing as an act of sexual assault. Moreover, the Courts in Britain and Switzerland have convicted people of crimes for removing condoms during intercourse.
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