The Supreme Court orders a new trial in a case where a man accused of sexual assault allegedly acted “dishonestly” by failing to wear a condom during sex, as requested by the complainant.
The highest court in the land therefore refused to acquit Ross McKenzie Kirkpatrick, instead referring the case to the British Columbia Court of Appeal. The Court will therefore have to decide, at the end of a new trial, whether Mr. Kirkpatrick is guilty of having committed a sexual assault, thus clarifying the way in which the use of a condom during sexual intercourse is linked to consent in under sexual assault law.
The Supreme Court had been called upon to rule in a British Columbia case in which a plaintiff told a new sex partner, Mr Kirkpatrick, that she would only have sex with him if he wore a condom . The two had met online and agreed to have safe sex.
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 that wasn’t the case, a fact she said she didn’t realize until he ejaculated. The complainant would then have been “shocked and panicked”, according to her testimony. She would also have told Mr. Kirkpatrick of her fears of being pregnant or of contracting a sexually transmitted disease. When she asked him why he did not use a condom during this sexual encounter, he would then have justified that he was “too excited”.
“Dishonesty”
Mr. Kirkpatrick was initially acquitted at trial of sexual assault, as the trial judge found there was no evidence that the complainant had not consented to “the sexual activity in question” nor that the accused had been explicitly dishonest, which would have been another avenue of conviction.
The British Columbia Court of Appeal disagreed and ordered a new trial, prompting Mr. Kirkpatrick to appeal to the Supreme Court, which upheld that appeal body.
“In our view, the foregoing provides at least some evidence that the Complainant would not have consented if Mr. Kirkpatrick had told her he was not wearing a condom before he penetrated her the second time, when she had clearly required that he wear one,” noted the Supreme Court. By not being made aware that her sexual partner was not wearing a condom, the complainant suffered “fraud vitiating consent”, ruled the court, which noted that she found herself at risk of pregnancy. unwanted due to the “dishonesty” of Mr. Kirkpatrick.
Thus, “we conclude that the fact that Mr. Kirkpatrick did not reveal that he was not wearing a condom constituted at least some proof of dishonesty sufficient to prevent the pronouncement of an acquittal”, can we read.
The highest court in the country specifies, however, that its decision does not mean that “the fact of not disclosing not wearing a condom will always be criminal”, the present decision being only “related to the particular facts of this case”.
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 that the law does not consider consent to one as consent to the other.
– With The Canadian Press