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

Warning: this story includes graphic sexual details

Canada’s highest court will hear arguments today on whether a man who ignored a woman’s request to wear a condom during sex should stand trial – a case that could have far-reaching implications for interpretation of consent and sexual assault.

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

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

They met and had sex twice one night, the first time with a condom. On the second opportunity, the woman said, Kirkpatrick briefly turned to the nightstand where she thought he was going to get another condom.

He was not.

The complainant addressed the police saying she had not consented to sex without a condom and said she would never have done so if asked.

The first trial judge acquitted Kirkpatrick in 2018, finding there was no evidence that the complainant did not consent to the sexual activity in question.

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

Two of the judges said sex with a condom is a different physical act from sex without a condom and therefore the complainant did not consent. The dissenting judge found there was evidence Kirkpatrick defrauded the alleged victim.

The Supreme Court will hear arguments today in a one-day hearing.

Sexual activity vs fraud

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

“The case on appeal provides this court with an opportunity to answer these questions and clarify the law of consent,” the Crown wrote in its brief.

To complicate matters, a 2014 Supreme Court ruling will be invoked by all parties today. This case involved a woman who had consented to have sex with the accused – Craig Jaret Hutchinson – on condition that he wear a condom. Unbeknownst to her, Hutchinson drilled holes in the condom and she became pregnant.

The Supreme Court justices upheld her conviction with the majority writing that her sabotage of the condom constituted fraud and that the woman’s consent was nullified by this deception.

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 too broad a 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 too broad a definition of sexual activity would capture situations involving accidents, such as breaking a condom during sex.

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

He says his client never tried to cheat on the woman, pointing to a moment for about a minute when, he says, his client asked the woman if it felt better. The woman said at the time that she thought he meant the position, but later realized he meant the lack of a condom.

“It’s a really critical element because someone asking that question isn’t trying to fool anyone,” Cote said.

“And yet, if the respondent succeeds, even if he had no intention of doing so, he is now guilty of an indictable offense, and would end up with a criminal record, could be registered as a sex offender. The result is very, very serious. “

Stakeholders seeking clarification for “stealth theft” cases

Stakeholders also hope the Supreme Court’s final ruling will provide more legal clarity to the phenomenon known as stealth, a slang term used to describe the non-consensual removal of a condom during sex.

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

“If you have only agreed to sex with a condom and this agreement is violated, it means that you have been subjected to touching and possibly contact with bodily fluids to which you have not consented, and it is this fundamental violation, this fundamental consent violation that we believe must be recognized by law.

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

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

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

“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 sexually transmitted infections, or maybe you are using another form of contraception so there is no realistic possibility of pregnancy, the second test – the second aspect of the fraud test is is not respected and therefore the protection of criminal law does not apply.

Côté said his client’s case was mistakenly seen as a landmark case for stealth and the broader issues of sex and empowerment.

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

“It’s something that causes public debate, and reasonable people may disagree with that, but it should go to Parliament. It shouldn’t go to the Supreme Court of Canada,” Cote said.

This would raise questions about inadvertent non-compliance, he argued.

“You have to ask yourself if this is really the kind of behavior that you want to criminalize? I think the answer is no, obviously we don’t want to criminalize this,” he said.

Feeny said contextualizing stealth as consent violations under sexual assault law would also provide clarity for women and men, as well as lower courts.

“It’s important to understand sexual assault law as something constantly evolving and in dialogue with the conversations going on in society at large,” she said.

“We live in a society where myths and stereotypes about rape have been prevalent and we still grapple with them, and these have at times limited our understanding of what sexual assault is.”

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