The Supreme Court ruled Friday that when a person is required by their partner to wear a condom during sex and they fail to do so, they could be convicted of sexual assault.
Updated at 0:11
“Since only yes means yes and no means no, ‘no, not without a condom’ cannot mean ‘yes, without a condom,'” Judge Sheilah L. Martin wrote on behalf of the majority of the justices of the court. Supreme Court.
This decision primarily concerns two people who, in March 2017, met on the internet before meeting in person in British Columbia.
In this case, can we read in the judgment, the plaintiff had made it clear to Ross Kirkpatrick “that she would agree to sexual intercourse with him only if he wore a condom, which he did to their first sexual intercourse”.
But during their second sexual encounter, the man did not wear one. “It was only after Kirkpatrick ejaculated inside her that the plaintiff realized he was not wearing a condom,” reads the judgment.
It was on the basis of these events that Mr. Kirkpatrick was charged with sexual assault. At the first trial, the complainant argued that she did not consent to this condomless sexual activity, while Mr. Kirkpatrick asked the judge to dismiss the charge due to lack of evidence. He argued that the complainant consented to sex, regardless of condom use, and that there was no evidence of fraud.
The trial judge agreed with Mr. Kirkpatrick. According to him, the complainant had consented to the “sexual activity”, even though a condom had not been worn.
The Court of Appeal held that the trial judge should not have dismissed the charge and Mr. Kirkpatrick therefore appealed this decision to the Supreme Court of Canada.
A new trial is required
The Supreme Court dismissed Mr. Kirkpatrick’s appeal and is now requiring a new trial.
On behalf of the Supreme Court majority, Justice Sheilah L. Martin said that when condom use is a condition of sexual intercourse, “there is no consent to the physical act of having sex without a condom.
The condom is part of the “sexual activity” in question to which the person has consented.
According to the Supreme Court, the plaintiff provided evidence that she would not have had sex with Mr. Kirkpatrick without a condom. Therefore, there was evidence that the complainant had not consented to the sexual activity in question. In the view of the Supreme Court, the judge at the first trial erred in concluding that there was no evidence and in dismissing the charge of sexual assault.
All the principles of statutory interpretation command the conclusion that sex with a condom is a different sexual activity than sex without a condom for the purpose of determining the sexual activity to which it was consensual.
Supreme Court Justice Sheilah L. Martin, in the decision
In the opinion of the Supreme Court, there is “some evidence that the plaintiff voluntarily consented to the sexual activity. However, at the second stage, there is also some evidence that the plaintiff’s apparent consent may have been vitiated by fraud.”
There was therefore, the decision wrote, “at least some evidence of dishonesty by omission and risk of deprivation due to risk of pregnancy.”
Called to comment on this Supreme Court decision, Mr.e Jean-Claude Hébert explains in particular that “the judges recall a reality: sexual intercourse without a condom is a physical act that is fundamentally and qualitatively different from sexual intercourse with a condom.
“The majority opinion took the opportunity to recall a guideline on the interaction between people: everyone has the right to decide who touches their body and how. »
“Today, no means no, and only yes means yes”, also recalls Me Hebert.
Finally, it provides that certain rude gestures (with a sexual connotation), such as wandering hands, are very likely to give rise to legal charges. “At the end of the day, the quality of the evidence and the credibility of the witnesses remain decisive. »