The Supreme Court will hear a case today involving a man who allegedly ignored the request to wear a condom during sex

Warning: this story contains some graphic sexual details

Canada’s Supreme Court today will hear arguments over whether a man who allegedly ignored a woman’s request to wear a condom during sex should be brought to justice – a case that could have far-reaching implications for the interpretation of consent and sexual assault.

The question at the heart of the matter concerns the definition of “sexual activity” and whether sex with a condom is a different type of activity than sex without.

The complainant, whose identity is protected by a restraining order, met Ross McKenzie Kirkpatrick online back in 2017 and testified that she had insisted that he wear a condom during sex.

They met and had sex twice a night, the first time with a condom. On another occasion, the woman said, Kirkpatrick turned briefly toward the bedside table, where she thought he was getting another condom.

He was not.

The complainant went to the police and said she did not consent to sex without a condom and said she would never have done so if asked.

The original court judge acquitted Kirkpatrick in 2018 and found that there was no evidence that the complainant had not given his consent to the sexual activity in question.

Last year, the Court of Appeal for British Columbia unanimously ordered a new trial, although the reasons were different.

Two of the judges said that intercourse with a condom is a different physical act than intercourse without a condom, and therefore the complainant had not given his consent. The dissenting judge found that there was evidence that Kirkpatrick had defrauded the alleged victim.

The Supreme Court will consider arguments today in a one-day meeting.

Sexual activity vs. fraud

The Crown is asking judges to rule on whether “no, not without a condom” means “yes, even without a condom.”

“The appeal case allows this court to answer these questions and clarify the consent law,” the Crown wrote in their card.

Complicating cases is a Supreme Court decision from 2014, which all sides will refer to today. The case involved a woman who agreed to have intercourse with the accused – Craig Jaret Hutchinson – on condition that he wore a condom. Without her knowledge, Hutchinson pierced holes in the condom and she became pregnant.

The Supreme Court judges upheld his verdict, with the majority writing that his condom sabotage constituted fraud and that the woman’s consent was annulled by that fraud.

In a previous Supreme Court case, the majority concluded that the meaning of “the sexual activity in question” did not include the use of a condom. They wrote that they were concerned that an overly broad definition of sexual activity would capture situations involving accidents – such as a condom breaking during sex. (Justin Tang / The Canadian Press)

The majority also concluded that the meaning of “the sexual activity in question” did not include the use of a condom. They said they were concerned that an overly broad definition of sexual activity would capture situations involving accidents – such as a condom breaking during sex.

Kirkpatrick’s attorney Phil Cote argues that the Supreme Court has already ruled on the definition of sexual activity in that case and that the BC Court of Appeal’s decision should be overturned.

He says his client never tried to deceive the woman and points to a moment around a minute where his client, he says, asked the woman if it felt better. The woman said at the time that she thought he meant the position, but realized afterwards that he meant the lack of a condom.

“It’s a really critical piece because someone who asks that question is not trying to deceive anyone,” Cote said.

“And yet, if the defendant succeeds, even if he did not intend to do so, he is now guilty of a criminal act, and would end up with a criminal record, could be registered as a sex offender. The result is very, very serious.”

Interveners seeking clarification in “theft” cases

Interveners also hope that the Supreme Court’s final decision will provide more legal clarity to the phenomenon known as stealthing, a slang term used to describe the removal of a condom without consent during sex.

“The law does not reflect people’s lived experiences,” said Kate Feeney, a lawyer for the West Coast Women’s Legal Education and Action Fund (West Coast LEAF). The group of lawyers is intervening in the case.

“If you have only said yes to sex with a condom and that agreement has been violated, it means that you have been exposed to touch and probably contact with body fluids that you did not agree with, and that is the central violation, the central consent violation, which we believe must be recognized in law. “

The law does not reflect people’s lived experiences.– Attorney Kate Feeney

Last month, California became the first U.S. state to make it a civil offense for someone to remove a condom without their partner’s consent.

Feeney also argues that the fraudulent lens used in Hutchinson can be a problematic way to prosecute theft cases because it applies when there is a significant risk, such as an unwanted pregnancy or sexually transmitted infection, and undermines a victim’s dignity and autonomy.

“The fraud test really only captures a narrow set of situations and victims,” ​​she said.

“If there is a deception, but your partner does not have any sexually transmitted infections, or perhaps you use another form of contraception so that there is no realistic possibility of pregnancy, the second test – the second aspect of the fraud test is not met, and therefore criminal protection does not apply. “

Cote said his client’s case is mistakenly seen as a landmark case for theft and major issues of sex and autonomy.

He said many of the interveners are asking the Supreme Court to essentially create a new law that says the physical act includes wearing a condom.

“This is something that is causing public debate, and sensible people may disagree with it, but it should go to Parliament. It should not go to Canada’s Supreme Court,” Cote said.

It would raise questions about unintentional non-compliance, he argued.

“You have to ask yourself, is this really the kind of behavior you want to criminalize? I think the answer is no, of course we do not want to criminalize it,” he said.

Feeny said the contextualization of theft as violations of consent within the Sexual Assault Act would also provide clarity to women and men and the lower courts.

“It is important to understand the law on sexual assault as something that is constantly evolving and in dialogue with conversations that are taking place in the wider community,” she said.

“We live in a society where rape myths and stereotypes have been prevalent and we are still struggling with them and they have sometimes limited our understanding of what sexual assault is.”

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