The Supreme Court of Canada will hand down a decision on Friday that should clarify how using a condom during sex relates to consent under sexual assault law.
The court will rule on a British Columbia case in which a plaintiff told a new sex partner, Ross McKenzie Kirkpatrick, that she would only have sex with him if he wore a condom.
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 he started having sex for the second time, a she told the court – but it wasn’t, a fact she said she didn’t realize until he ejaculated.
Mr. Kirkpatrick was acquitted of sexual assault, as the trial judge found there was no evidence that the complainant had not consented to “the sexual activity in question” or that the accused had been explicitly dishonest, which would have been another avenue of condemnation.
The British Columbia Court of Appeal disagreed and ordered a new trial, prompting Mr Kirkpatrick to appeal to the Supreme Court.
The British Columbia Crown and intervenors, including the Attorneys General of Ontario and Alberta, urged the Supreme Court to recognize sex with a condom and unprotected sex as two distinct activities, so that the law does not consider consent to one as consent to the other.
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