People who don’t wear condoms during sex despite requests from their sexual partners to do so can be convicted of sexual assault, Canada’s Supreme Court ruled Friday, potentially setting an important legal precedent on the issue of consent.
“This is an important development for women and others who have sex with men,” said Isabel Grant, a law professor at the University of British Columbia who specializes in male intimate partner violence against women and sexual assault.
“The decision is internationally significant,” she said. “There is now a clear statement in Canadian law that stealthing — the deceptive removal of a condom during sex — constitutes sexual assault.”
The complainant in the case, a woman whose name has not been made public, says she met Ross McKenzie Kirkpatrick, from British Columbia, online in 2017. The two of them met up in March that year for about two hours before deciding to have sex. According to the woman’s testimony, she told the accused that she insisted on using condoms, and he agreed.
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, according to the Supreme Court, the complainant did not know that Kirkpatrick was not wearing a condom because the conditions were dark.
Kirkpatrick claimed that he asked “does this feel better than the last time?”, in reference to the lack of condom use, but the complainant thought he was referring to the sexual position. He was charged with sexual assault and was acquitted in 2018, after the trial judge said there was no evidence the woman had not consented to the physical act of sexual intercourse, regardless of condom use.
But British Columbia’s Court of Appeal ordered a new trial, finding that the first judge was wrong to dismiss the sexual assault charge based on a lack of evidence. Mr. Kirkpatrick appealed to the Supreme Court of Canada.
Kirkpatrick asked the judge to apply the Supreme Court’s decision in a 2014 case in establishing the definition of consent. The 2014 case, R v. Hutchinson, involved a woman who consented to have sex with her boyfriend, Craig Jaret Hutchinson, only if he wore a condom. Hutchinson pierced holes in the condom and impregnated his girlfriend. He was convicted of sexual assault, and his conviction was upheld by the top court with the majority of the justices arguing that sabotaging the condom constituted fraud.
Mr. Kirkpatrick argued that, unlike Hutchinson, there was no evidence of fraud in his case.
But speaking on behalf of the majority of judges on the Supreme Court, Justice Sheilah L. Martin said that when condom use is a condition for sexual intercourse, “there is no agreement to the physical act of intercourse without a condom.” The condom becomes part of the “sexual activity in question” and should be considered separate and equally weighted to ordinary sexual consent.
“Since only yes means yes and no means no, it cannot be that ‘no, not without a condom’ means ‘yes, without a condom,’ ” Martin wrote.
Pam Hrick, executive director of Women’s Legal Education and Action Fund, said the decision “is an important statement that sexual partners must respect a decision to insist on condom use during sex.”
She added, “This is foundational to the right to sexual autonomy and equality."
The court ruled that Hutchinson does not apply to Kirkpatrick, but it still applies in cases involving condom sabotage and fraud.
In May, a woman in Germany was found guilty of sexual assault for poking holes in her partner’s condoms. A German court likened the woman’s actions to stealthing.
In Britain, stealthing is considered rape but there has only ever been one successful prosecution, in 2019, according to the BBC. A California law passed in 2021 made stealthing a civil offense, allowing victims to sue perpetrators in court.