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If you tell your sexual partner that you will only consent to sex if they wear a condom and they do not wear one, is it sexual assault? In July 2022, the Supreme Court of Canada decision in R v Kirkpatrick addressed the issue of non-consensual condom removal (sometimes referred to as “stealthing”) and refusal. The Court’s decision in Kirkpatrickdemonstrates the evolution of how we understand the harms of non-consensual condom removal and refusal, as well as the struggle to define the appropriate boundaries of criminal law.
In Kirkpatrick, the complainant met the accused online. When they met up to discuss past sexual partners and sexual practices, the complainant told the accused that she would only agree to having sex with condoms, to which the accused agreed. A few days later, they met up at the accused’s house. The first time they had sex, the accused wore a condom; when they had sex the second time, he did not. The complainant was not aware that the accused was not wearing a condom until he ejaculated inside her.
The conceptual difficulties regarding non-consensual condom removal and refusal in Canadian sexual assault law
Under Canadian sexual assault law, consent is defined as “voluntary agreement of the complainant to engage in the sexual activity in question” (s. 273.1(1), Criminal Code). However, consent can be “vitiated” by fraud if the accused deceived the complainant, and if the deception created a significant risk of serious bodily harm to the complainant (section 263(3)(c) of the Criminal Code).
The issue of non-consensual condom removal and refusal has been subject to analytical uncertainty in Canadian law – namely, whether condom use should form a part of the definition of “sexual activity in question” under the main consent provision, or whether it should be considered as deceptive activity that negates the complainant’s consent. This issue came up in a 2014 Supreme Court case of R v Hutchinson, where the accused secretly poked holes in the condoms he used with the complainant and the complainant became pregnant.
In Hutchinson, the Court was unanimous in its outcome that the accused’s appeal should be dismissed but disagreed as to why. The majority favoured a narrow interpretation of the term “sexual activity in question” to find that the term only includes the physical sex act itself (such as kissing, sex, or using sex toys) and “does not include conditions or qualities […] such as birth control measures”. The reason for this narrow interpretation was the need for restraint and certainty when applying criminal principles. As a result, the majority found that while the complainant did consent to sexual activity with the accused, the accused’s conduct amounted to fraud vitiating the complainant’s consent.
The Supreme Court’s decision in Kirkpatrick
Eight years after Hutchinson, the majority of the Supreme Court in Kirkpatrick found that “when it is a condition of the complainant’s consent, condom use must form part of the ‘sexual activity in question’ under s. 273.1 of the Criminal Code”. The majority of the Court distinguished the case from Hutchinson by noting that Hutchinson only addressed the conduct of condom sabotage, not cases of non-consensual condom removal and refusal.
Justice Martin, writing for the majority, affirmed that “[r]ecognizing that condom use may form part of the sexual activity in question is […] the only way to respect the need for a complainant’s affirmative and subjective consent to each and every sexual act, every time”. Significantly, Justice Martin acknowledged the rising prevalence of non-consensual condom removal and refusal and the gendered nature of its harms, emphasizing how it disproportionately impacts people living with multiple intersecting forms of marginalization such as poor, racialized, and migrant women, as well as sex workers and gender-diverse people.
Implications of the case
As the Women’s Legal Education and Action Fund (LEAF) stated in its announcement welcoming the decision, the majority in Kirkpatrick make “an important statement that sexual partners must respect a decision to insist on condom use during sex.” In citing the advocacy of various feminist organizations – including LEAF – who intervened before the Supreme Court in this case, the majority recognized the gendered and complex impacts of sexual assault.
Questions remain about what evidence the complainant must show to establish that their consent is contingent on condom use. In Kirkpatrick, the complainant testified to insisting on condom use at a meeting that took place before she engaged in sexual activity, as well as asking the accused to see the condom after a sexual encounter. For people who face intersecting systemic barriers such as racism, transphobia, and poverty, it may be more difficult to provide evidence of requesting condom use, or have their evidence believed by members of the justice system.
The decision in Kirkpatrick also demonstrates the remaining tension in the law between the need for restraint to avoid over-criminalizing marginalized populations and the need to promote sexual autonomy through a robust understanding of consent. It is likely that the courts will continue to grapple with the boundaries of consent, and what should be criminalized under sexual assault law, as our understanding of sexual violence and the harms of the carceral state evolves.
–The author would like to thank Mirabelle Harris-Eze for her research assistance.
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