TORONTO — It is a crime to renege on a promise to wear a condom during sex without a partner’s knowledge or consent, the Supreme Court of Canada ruled this week.
The decision sends a British Columbia man back to trial for sexual assault, and sets legal precedent in Canada, further clarifying the law governing sexual consent in a country that has been raising the bar for it for decades.
“In no other jurisdiction in the world is it as clear that when someone has agreed to sex with a condom, and removed it without their consent, this constitutes sexual assault or rape,” said Lise Gotell, professor of women’s and gender studies at the University of Alberta, and an expert on sexual consent and Canadian law.
“The court says very clearly there is no consent in that circumstance — it doesn’t matter whether or not the non-consensual condom removal was overt, or if it was deceptive,” she added.
The case in question involves two people who interacted online in 2017, met in person to see if they were sexually compatible, and then met to have sex. The woman, whose name was shielded by a publication ban, had predicated her agreement to sex on the use of a condom. During one of two sexual encounters at that meeting, the accused man didn’t wear a condom, unknown to the woman, who later took preventive H.I.V. treatment.
The defendant, Ross McKenzie Kirkpatrick, was charged with sexual assault. However, the trial court judge dismissed the charge, accepting Mr. Kirkpatrick’s argument that the complainant had consented to the sexual relations, despite Mr. Kirkpatrick’s failure to wear a condom.
The ruling was overturned by the British Columbia Court of Appeal, which ordered a new trial. Mr. Kirkpatrick appealed that decision to the country’s top court, which heard arguments last November.
“Sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom,” states the ruling, which was approved by a 5-4 vote by the court, and was released on Friday.
It adds, “Condom use cannot be irrelevant, secondary or incidental when the complainant has expressly conditioned her consent on it.”
Mr. Kirkpatrick’s lawyer said the new interpretation of the criminal code, which will be standard across the country, would drastically change the rules around sexual consent, making it almost like a binding contract that could be signed in advance.
“In Canada, consent is always in the moment. But what this decision does, it creates an element of consent far from the moment of sexual activity — in this case days or even a week before the sexual encounter,” said Phil Cote, a defense lawyer in Surrey, British Columbia.
“If there’s a moral to be taken from this for everyone, but particularly for men, is that you have to be sure there is active and engaged consent. And if you are not sure, you should ask,” he added. “But unfortunately, that’s not how sexual encounters go.”
Some studies show condom-use resistance has become widespread over the past decade, and significant numbers of women and men who have sex with men report having experienced partners removing condoms without their consent.
The practice, popularly known as “stealthing,” has become prevalent enough that some Canadian universities have incorporated it into their sexual violence prevention policies.
Last year, California Gov. Gavin Newsom signed a bill into law which made stealthing illegal — a first in the United States. However, the law amended the state’s civil definition of sexual battery, offering victims grounds to sue their assailants for damages, but it didn’t alter the criminal code. Around the same time, the Legislative Assembly in the Australian Capital Territory, which includes Canberra, also passed new laws that define stealthing as an act of sexual assault.
Canada has passed increasingly restrictive laws against sexual assault since 1983, when it amended its rape law by replacing rape with three criminal offenses that broaden the definition of sexual assault to include violent actions other than non-consensual penetration.
Vjosa Isai contributed reporting from Quebec.