The absence of a condom, without consent, may constitute sexual assault

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The absence of a condom, without consent, may constitute sexual assault

Complainant testified that she did not consent to sex without a condom.

Supreme Court rules that when a person is held by their partner to wear a condom during sex, but she doesn't, she could be guilty of sexual assault.

The Supreme Court confirms a new trial against Ross McKenzie Kirkpatrick, a British Columbia man who did not use a condom during sex with a woman who demanded it. The court ruled that when wearing a condom is a condition of sexual intercourse, it is part of the sexual activity to which the person has consented within the meaning of subsection 273.1(1) of the Criminal Code.

Since only yes means yes and no means no, "no, not without a condom" cannot mean "yes, without a condom", writes Judge Sheilah L. Martin in the majority decision of five of the Supreme Court's nine justices.

According to the majority of the justices , the complainant presented evidence showing that she did not consent to sex without a condom. And, despite a difference of opinion on the jurisprudence that applies to this case, the four judges of the minority also believe that the trial judge erred in finding that there was no evidence and dismissing the charge of sexual assault.

A new trial is therefore necessary, concludes the Supreme Court.

Criminal lawyer Charles Côté considers that the court is altogether unanimous in clarifying the issues surrounding stealthing (stealthing , in English).

The practice of stealth, where the accused person pretends to have put on a condom or removes it without the knowledge of the partner, has been increasingly discussed in recent years in many countries. In October 2021, California became the first US state to punish the non-consensual removal of a condom during sex.

Charles Côté explains that stealth is a concept known legal system and that this practice which, unfortunately, puts the notion of consent at risk, is based on a balance of power where an agreement given beforehand by the other party can be vitiated.

Naturally, if the condom breaks, it is not a voluntary act, he specifies. But it would take a reaction from that partner when he realizes the situation.

In the case of sexual relations, contracts and consent are essentially verbal. But it remains valid, explains the criminal lawyer. In case of ambiguity, it must nevertheless be assumed that consent is not acquired.

The British Columbia Crown and intervenors, including the attorneys general of Ontario and Alberta, had urged the Supreme Court to recognize sex with a condom and unprotected sex as two distinct activities, so the law does not consider consent to one as consent to the other.

The court ruled on a British Columbia case in which a plaintiff told a new sexual partner, Ross McKenzie Kirkpatrick, that she would only have sex with him if he wore a condom. /p>

The fact that Mr. Kirkpatrick used a condom the first time they had sex led the complainant to assume that he was already wearing one when& #x27;he started having sex for the second time, as she told the court, but it didn't. She said she didn't realize it until he ejaculated.

Mr. Kirkpatrick was acquitted of sexual assault, as the trial judge found there was no evidence that the complainant did not consent to the sexual activity in question or that the sexual activity in question was accused had been explicitly dishonest, which would have been another avenue of conviction.

The British Columbia Court of Appeal was not wrong. agreement and ordered a new trial, prompting Mr. Kirkpatrick to appeal to the Supreme Court.

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