Canada’s Supreme Court heard a case Wednesday that raised questions about what constitutes consent. The key questions: whether a man who did not wear a condom during sex, despite his partner allegedly having asked him to, should stand trial.
They met again at his house and had sex twice, the first time with a condom, she told a court in 2018. The second time, the man turned to the bedside table, according to her account, which made her think he was getting another condom, which she alleges turned out not to be the case.
Kirkpatrick argued that there had been a misunderstanding. He was charged with sexual assault and was acquitted in 2018, after the judge said there was no evidence the woman had not consented, according to CTV News. In his statement to police, he denied that she said she would only have sex if he wore a condom. The case went to appeals and the court approved a new trial.
“This case is about consent — specifically, how being able to request condom use during sex is fundamental to upholding a person’s autonomy, equality and dignity,” Rosel Kim, staff lawyer for the Women’s Legal Education and Action Fund, an advocacy organization, said of the case.
The organization argued before the Supreme Court that “sex without a condom is materially different than sex with a condom, and therefore requires separate, communicated consent. Sexual assault law should protect the right of an individual to set limits on who may touch them, and how.”
A 2014 case referenced during the hearing involved a woman who consented to have sex with her boyfriend, Craig Jaret Hutchinson, only if he wore a condom. He pierced holes in the condom, and the woman became pregnant. He was convicted of sexual assault, and his conviction was upheld by the court with the majority of the justices arguing that sabotaging the condom constituted fraud.
Phil Cote, a senior partner at Cote & Evans Trial Lawyers who represents Kirkpatrick, said that Canada’s Supreme Court already ruled on this issue in the Hutchinson case, in that consent to a sexual activity doesn’t include use of contraceptives. “You are consenting to the specific sex act,” he said. In the Hutchinson case, the woman agreed to the sex act in question, intercourse with her boyfriend, but sabotaging the condom nullified her consent, the majority of the court ruled.
In the case of Kirkpatrick, Cote argued that it was very obvious he wasn’t trying to hide that he wasn’t wearing a condom. The complainant thought Kirkpatrick was wearing one, but “not for anything Kirkpatrick did,” Cote said.
This goes to Kirkpatrick’s intent, as he wasn’t trying to deceive the complainant, he added. “We don’t usually criminalize behavior if someone didn’t have the intent to do it.”
The nonconsensual removal of a condom during sex, also referred to in slang as “stealthing,” has made headlines recently, as California became the first U.S. state to outlaw the practice last month, making it a civil offense.
“The experience of realizing that your partner, your sexual partner, has no concern for your autonomy, your individual dignity, your right to make decisions about who you have sex with, when and how,” Alexandra Brodsky, a civil rights lawyer who wrote a widely referenced paper on the topic as a student, told NPR at the time, “that’s a terrible violation regardless of whether a physical injury occurs, regardless of whether a pregnancy occurs.”
A handful of countries have taken steps to outlaw the practice. In December 2018, a Berlin court found a police officer guilty of sexual assault after removing his condom during sex. In October of this year, the Australian Capital Territory became the first Australian jurisdiction to criminalize the practice. In April, a New Zealand court found a man guilty of rape after he removed a condom during a sexual act.