Two activities 'fundamentally and qualitatively' different
When a person’s sexual consent is conditional on condom use, they have not consented to sex without a condom, the Supreme Court found this morning.
In R. v. Kirkpatrick, the SCC unanimously dismissed an appeal brought by the accused in a sexual assault case. But the court was split on which Criminal Code provision applies to a situation where the complainant’s sexual consent was contingent on condom use and the accused did not wear one.
“As the Crown argued, and as the majority stated aptly, ‘only yes means yes and no means no,’ it cannot be that ‘no, not without a condom’ means ’yes, without a condom,’” says John Caldwell, who acted for the Crown.
“Today's decision offers assurance for survivors from Canada's highest court,” says Deepa Mattoo, executive director of the Barbra Schlifer Commemorative Clinic. The clinic intervened in the case, with Joanna Birenbaum appearing on its behalf.
“Non-consensual condom refusal or removal is a form of sexual violence generating physical and psychological harm,” says Mattoo. “The power dynamic it rests on is exacerbated among vulnerable women, gender-diverse people and sex workers.”
The court’s confirmation that a complainant can limit sexual consent to sex with a condom is a “very important development,” says Professor Isabel Grant, a criminal law expert and associate dean of academic affairs at the University of British Columbia’s Peter A. Allard School of Law.
The ruling puts Canada at the forefront of recognizing that “stealthing,” the deceptive removal of a condom during sex, constitutes sexual assault, she says.
“Social science studies have demonstrated that condom refusal and stealthing are widely prevalent practices, especially among young people and in the context of violent intimate partner relationships,” says Grant. “The criminal law now recognizes that if a woman insists on a condom, it is sexual assault to proceed without. The majority has reaffirmed the subjective standard of consent – in other words that consent is determined by asking whether the complainant wanted the particular sexual activity to take place.”
At all stages of the litigation, the courts focused on R. v. Hutchinson, the 2014 SCC case which evaluated consent in a two-step process. The first question is whether the complainant consented to the “sexual activity in question” under s. 273.1(1) of the Criminal Code. The second asks whether there are any circumstances which nullify that consent, under ss. 265(3) or 273(2)(c). These circumstances include the application of force, threats, the exercise of authority, and fraud.
At trial, Ross Kirkpatrick was acquitted because the judge found condom use was not part of the “sexual activity in question,” under s. 273.1(1). The judge also found there was no evidence Kirkpatrick had fraudulently led the complainant to believe he was wearing one.
The Crown appealed and the Court of Appeal unanimously set aside the acquittal. But the judges were split over the application of Hutchinson. While two judges found condom use was an aspect of the “sexual activity in question,” under s. 273.1(1), the other was of the view that condom use was only relevant to s. 265(3). The dissenting judge agreed with the trial judge that the complainant had consented but found Kirkpatrick had obtained that consent through fraud.
While the SCC unanimously dismissed Kirkpatrick’s appeal, like the Court of Appeal, it was also divided over Hutchinson.
The majority – Justices Michael Moldaver, Andromache Karakatsanis, Sheilah Martin, Nicholas Kasirer, and Mahmud Jamal – found Hutchinson was distinguishable from Kirkpatrick’s case. Hutchinson dealt with condom sabotage and deceit, and they said it did not establish that all cases involving condom use can only be addressed when fraud is established under s. 265(3).
When condom use is a condition of a person’s consent, it forms part of the “sexual activity in question” under s. 273.1, said the majority. They add that theirs is the only interpretation that harmonizes the provision, in its entire context, with “Parliament’s purpose of promoting personal autonomy and equal sexual agency.”
According to the dissenters, in Hutchinson the court held that the “sole pathway to criminal liability” when a sexual partner circumvents a condom-use condition is arguing, under s. 265(3)(c), that fraud negated consent. Justices Richard Wagner, Suzanne Côté, Russell Brown, and Malcolm Rowe said there was some evidence the complainant had consented to the sexual activity in question, but a new trial was required to determine if that consent was undone by fraud.
“Preventing a complainant from limiting consent to circumstances where a condom is used erodes the right to refuse or limit consent to specific sexual acts,” says Mattoo, “leaving the law of Canada seriously out of touch with reality and dysfunctional in terms of its protection of sexual autonomy.”
The ruling in R. v. Kirkpatrick may have implications beyond the use of condoms in sexual assault cases, adds Grant, whose research interests include the law and policy issues surrounding violence against women and sexual assault.
“For example, prior to this decision the court shied away from answering the question about whether the amount of force used in sexual activity was part of consent,” she says. “After this decision it is much more likely that the answer to that question will be yes. The majority has gone as far as it can in limiting the damage of its earlier decision in Hutchinson that put some of these questions in doubt.”