Supreme Court rules that ignoring a partner’s request to wear a condom could be classed as sexual assault

The Supreme Court of Canada, in Ottawa, in 2021.Justin Tang/The Canadian Press

If a person does not use a condom during sex, despite his partner’s obligation to do so, he could be guilty of sexual assault, the Supreme Court ruled Friday in a decision that scientists and lawyers call extremely important.

The court’s decision makes it clear that sex with a condom and sex without a condom are not the same – and states that the two acts are “fundamentally and qualitatively different”.

“A complainant who consents to sex on the condition that his partner wears a condom is not consenting to sex without a condom,” Judge Sheilah Martin wrote for the majority. “Since only yes means yes and no means no, it cannot be that ‘no, not without a condom’ means ‘yes, without a condom’.”

In recent years, awareness of non-consensual refusal or removal of condoms has increased. The term can refer to various offenses, from a man refusing to wear a condom when asked; pretend to put on a condom but don’t; and secretly removing a condom halfway through sex, which is called “stealthing.”

In a 2019 study of undergraduate students at a Canadian university, among 334 participants who said they had at some point had penetrative sex with a male partner and used a condom, 18.7 percent said they had had condom removal without had experienced mutual consent.

“There’s a growing public discussion about condom refusal and condom removal without consent, and what we’ve seen today is the law catching up with that conversation,” said Kate Feeney, process director at West Coast Legal Education and Action Fund, which was an intermediary in the matter.

The court’s decision stems from a sexual assault charge against Ross Kirkpatrick, a man from BC, who met a woman in March 2017 to discuss the possibility of sex. During that conversation, the woman, whose identity is protected by a publishing ban, said she made it clear that she would only have sex with him if he used a condom.

During their second meeting, the couple had sex twice. The first time, Mr. Kirkpatrick used a condom. The second time, the woman thought he had put on a condom, but when he ejaculated into her, she realized he hadn’t, according to the woman’s testimony, referenced in the court’s ruling.

Several experts told The Globe that Friday’s decision sets an important precedent in Canada — and possibly beyond.

“It’s definitely important for women in this country — it’s important internationally as well,” said Lise Gotell, a professor of women’s and gender studies at the University of Alberta. “In no other jurisdiction is the law so clear now that when you consent to sex with a condom, you are not consenting to sex without it. … This is an incredibly important decision.”

Initially, a provincial court in British Columbia dismissed the charges against Mr. Kirkpatrick, applying a standard from a Supreme Court ruling in a sexual assault case known as Hutchinson, in which a man poked holes in condoms without his partner knowing. In that case, the court ruled that the woman had consented to the ‘sexual activity in question’, but that the consent had been obtained through fraud, and upheld the man’s conviction.

The county court ruled that because the woman agreed to have sex with Mr Kirkpatrick, she consented to the “sexual activity in question” and there was no evidence of fraud.

The Supreme Court unanimously ruled in favor of a new trial in Mr Kirkpatrick’s case.

The Supreme Court ruling makes it clear that condom removal without mutual consent can be assessed under the definition of consent in the Criminal Code, rather than by proving the existence of fraud, although it states that cases specifically involving “condom tamper” still have to be assessed by Hutchinson.

“It makes it clear that everyone has the right to insist on condom use, and where it’s not used — in any way, deceitfully or not — that’s sexual assault,” said Isabel Grant, a professor at the University of Applied Sciences. Allard School of Law at the University of British Columbia.

While the judges unanimously agreed that a retrial is needed in the Kirkpatrick case, their reasoning differed, with five siding with Judge Martin and four arguing separately.

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