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Breaking Agreement to Use a Condom Is a Sex Crime, Canada High Court Rules


TORONTO – Canada’s Supreme Court ruled this week that it is a crime to refuse a promise to wear a condom during sex without your partner’s knowledge or consent.

The decision put a British Columbia man back on trial for sexual assault and set legal precedent in Canada, further clarifying the law governing sexual consent in a country that has raised barriers for decades .

“There is no other jurisdiction in the world where it is clear that when someone agrees to have sex with a condom and takes it off without their consent, this constitutes sexual assault or coercion. rape,” said Lise GotellProfessor of Women and Gender Studies at the University of Alberta, and an expert in sexual consent and Canadian law.

“The court made it very clear that there was no consent in that case – it didn’t matter if the non-consensual condom removal was made public, or was fraudulent,” she added.

The case in question involved two people who interacted online in 2017, meeting in person to see if they were sexually compatible, and then meeting to have sex. The woman, whose name is covered by the publication ban, predicted her consent to sex using a condom. During one of the two sexual encounters at that encounter, the man allegedly did not wear a condom, which the woman subsequently received HIV prophylaxis.

The defendant, Ross McKenzie Kirkpatrick, was charged with sexual assault. However, the trial judge dismissed the allegation, accepting Kirkpatrick’s argument that the complainant had consented to sex, even though Mr Kirkpatrick was not wearing a condom.

The ruling was overturned by the British Columbia Court of Appeals, which ordered a new trial. Mr Kirkpatrick appealed that decision to the country’s top court, which heard the arguments last November.

“Having sex without a condom is a fundamentally and qualitatively different physical act than having sex with a condom,” the ruling was passed by the court in a 5-to-1 ratio. 4 and announced on Friday.

It added, “Condom use cannot be unrelated, secondary or incidental where the complainant has expressly expressed his or her consent to it.”

Mr. Kirkpatrick’s attorney said the new interpretation of the penal code, which will be the standard across the country, would dramatically change the rules around sexual consent, making it almost like a binding contract. The obligation can be signed in advance.

“In Canada, consent is always present. But what this decision does, it creates an element of consent that is far from the moment 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 said.

“If there is an ethics that needs to be taken from this for everyone, but especially for men, then you have to make sure there is active consent and participation. And if you’re not sure, you should ask,” he added. “But unfortunately, that’s not how sexual encounters work out.”

Several studies show that resistance to condom use has become widespread over the past decade, and significant numbers of women and men have sex with men. report on experienced partners removing condoms without their consent.

This practice, commonly known as “stealth,” has become so popular that some Canadian universities have included it in their sexual violence prevention policies.

Last year, California Governor Gavin Newsom sign an invoice into law making stealth illegal – a first in the United States. However, the law revised the state’s civil definition of a sexual battery, providing victims with the basis to sue their attackers for damages, but it did not change the penal code. At the same time, the Legislative Council in the Australian Capital Territory, consisting of Canberra, also passed a new law defines stealth as an act of sexual assault.

Court in England and Switzerland convicted him of removing condoms during intercourse.

Canada has passed increasingly restrictive legislation against sexual assault since 1983, when it revised its rape law by replacing rape with three criminal offenses, expanding the definition of sexual assault to include includes acts of violence other than non-consensual intrusion.

Vjosa Isai Contribution reports from Quebec.



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