TORONTO — It is a crime to break a promise to wear a condom during sex without a partner’s knowledge or consent, Canada’s Supreme Court ruled this week.
The decision sends a British Columbia man back to trial for sexual assault and sets a legal precedent in Canada, further clarifying the law governing sexual consent in a country that has been raising the bar for decades.
“In no other jurisdiction in the world is it so clear that when someone has consented to sex with a condom and removed it without their consent, it is sexual assault or rape,” said Lise Gotell, a 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 that there is no consent in that circumstance — it doesn’t matter whether the condom removal without consent was overt or 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 protected by a publication ban, had based her consent to sex on the use of a condom. In one of the two sexual encounters during that encounter, the accused man was not wearing a condom, unknown to the woman, who later received preventive HIV treatment.
The defendant, Ross McKenzie Kirkpatrick, was charged with sexual assault. However, the judge of the court dismissed the charges and accepted Mr. Kirkpatrick that the complainant had consented to the sexual relations, despite the fact that Mr. Kirkpatrick wasn’t wearing 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 highest court, which heard arguments last November.
“Intercourse without a condom is a fundamentally and qualitatively different physical act than intercourse with a condom,” states the ruling, which was approved by the court by 5-4 votes and released Friday.
It adds: “Condom use should not be irrelevant, secondary or incidental if the complainant has expressly consented to it.”
Kirkpatrick’s lawyer said the new interpretation of the penal code, which will be standard across the country, would drastically change the rules surrounding sexual consent, making it almost a binding contract that could be signed in advance.
“In Canada, consent is always in the moment. But what this decision does creates an element of consent far from the time of sexual activity — in this case days or even a week before the sexual encounter,” said Phil Cote, a defense attorney in Surrey, British Columbia..
“If there is a moral to be drawn from this for everyone, but especially for men, it is that you have to be sure that there is active and committed consent. And if you’re not sure, you should ask,” he added. “But unfortunately, that’s not how sexual encounters go.”
Some studies show that resistance to condom use has become widespread in the past decade, and a significant number of women and men who have sex with men report having experienced partners who have removed condoms without their consent.
The practice, popularly known as “stealthing,” is so widespread that some Canadian universities have included it in their sexual assault prevention policies.
Last year, California Governor Gavin Newsom signed a law that made stealth illegal — a first in the United States. However, the law changed the state’s civilian definition of sexual assault, giving victims grounds to sue their attackers for damages, but it didn’t change the criminal code. At about the same time, the Legislative Assembly in the Australian Capital Territory, which includes Canberra, also passed new laws defining stealth as an act of sexual assault.
Courts in Britain and Switzerland have convicted people of crimes for removing condoms during intercourse.
Canada has enacted increasingly strict laws against sexual assault since 1983, when it amended its rape law to replace rape with three offenses that broaden the definition of assault to include violent acts other than consensual penetration.
Vjosa Isai contributed reporting from Quebec.