CANADA: Canada’s Supreme Court has ruled that removing a condom during sexual intercourse without the permission of a partner is a crime.
The decision was announced in a case involving two people who interacted online in 2017, met in person to see if they were sexually compatible, and then met to have sex, The New York Times reported.
The woman, whose name was protected by a publication ban, assumed her consent to sex with the use of a condom. During one of the two sexual encounters at this meeting, the accused man did not wear a condom, which the woman did not know, and later used preventive H.I.V. therapy.
The defendant, Ross McKenzie Kirkpatrick, was charged with sexual assault. However, the trial judge dismissed the charges and accepted Kirkpatrick’s argument that the complainant had consented to sexual intercourse despite not wearing a condom.
The decision was overturned by the British Columbia Court of Appeal, which ordered a new trial. Kirkpatrick appealed that decision to the nation’s highest court, which heard arguments last November.
“Sex without a condom is a fundamentally and qualitatively different physical act than the intercourse with a condom,” said the ruling, which the court approved by a 5-4 vote and published on Friday.
“Condom use cannot be irrelevant, secondary or incidental when the complainant has expressly conditioned her consent on it,” the court said.
Kirkpatrick’s lawyer stated that 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,” shared Phil Cote, a defence lawyer in Surrey, British Columbia.
He added, “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. But unfortunately, that’s not how sexual encounters go.”
Lise Gotell, professor of women’s and gender studies at the University of Alberta, and an expert on sexual consent and Canadian law also shared her thoughts: “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.”
“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.