Sex with condom is legally different from sex without, B.C. court rules in consent-case appeal

B.C.'s appeal court has ordered a new trial for a man acquitted of sexual assault after he allegedly reneged on a promise to wear a condom during sex.

In a case that explores the boundaries and definitions of sexual activity and consent, the three appeal court judges all reached the same conclusion — while apparently disagreeing with each other on exactly why.

Two of the judges agreed that sex without a condom is a fundamentally different activity — legally — from sex with a condom. 

And one of those judges then switched sides to join the dissenting judge in finding there was evidence the accused had defrauded the alleged victim into having sex with him.

Either way, Ross McKenzie Kirkpatrick faces another trial.

No 'evidence of dishonesty'

The original B.C. provincial court trial in Surrey in 2018 ended in acquittal without Kirkpatrick's testimony. A provincial court judge found there was no evidence to support either the woman's contention that she hadn't consented to sexual activity or that her consent had essentially been obtained through fraud.

"I am unable to find any evidence of dishonesty on the part of the accused that could result in a conviction," the trial judge wrote.

• READ | View the B.C. Court of Appeal decision ordering new trial

In the appeal, however, Justice Harvey Groberman concluded: "As there was evidence indicating that the accused engaged in sexual intercourse without a condom, knowing that the complainant required him to wear one, the judge erred in granting the no-evidence motion. In the result, I would set aside the acquittal and remit the matter to the provincial court for a new trial."

In the opening to his majority reasons for judgment, Groberman wrote: "The question on this appeal is a simple one: where a person consents to engage in sexual intercourse on condition that their sexual partner wear a condom, can that partner ignore the condition without being subject to criminal liability?"

Insisted on use of condoms

The alleged offence occurred in March 2017, a few days after the couple first met in person. They had spoken online prior to that meeting and, face-to-face, they discussed sexual practices.

The woman said she told Kirkpatrick she insisted on the use of condoms.

"The accused agreed that such a practice was safest for all concerned," the appeal judgment says.

A few days later, the woman went to Kirkpatrick's house just after midnight, where they went up to his bedroom and undressed.

"She asked if he had a condom, and added that if he did not, she did," the judgment says. 

Awoke in the night

"He replied that he did, and reached onto a side table to get one, which he put on. The two then engaged in vaginal intercourse."

According to the ruling, the woman awoke in the night to find Kirkpatrick sexually aroused. She claimed she pushed him away and he turned briefly to the side table.

"Although the complainant believed that he was getting a condom, he was not doing so," Groberman wrote. "The two then engaged in sexual intercourse."

The woman said Kirkpatrick told her he was "too excited to wear a condom."

She took the matter to the police.

Related Nova Scotia case

Complicating matters in the appeal was a Supreme Court of Canada decision in which the country's highest court considered questions of sexual activity and consent in a Nova Scotia case involving a man who poked a pin in a condom before having sex with a woman who then became pregnant.

In that ruling, the judges upheld the man's sexual assault conviction, finding that while the victim consented to have sex, her consent was nullified by the accused's deception.

"The accused's condom sabotage constituted fraud … the result that no consent was obtained," Chief Justice Beverley McLachlin and Justice Thomas Cromwell wrote on behalf of the court.

"A person consents to how she will be touched, and she is entitled to decide what sexual activity she agrees to engage in for whatever reason she wishes."

But in Kirkpatrick's case, the implications of their ruling were interpreted differently by each of the B.C. appeal court judges.

What is 'sexual activity'?

The question at the heart of the case concerns the definition of "sexual activity" and whether intercourse with a condom is a different type of activity from intercourse without.

Groberman and Justice Mary Saunders agreed that it was — and that as such, the woman had not consented to the sexual activity Kirkpatrick engaged in without protection.

"This is a case about sexual activity that the complainant consented to," Groberman wrote.

"On her evidence, she did not consent to the accused penetrating her with his unsheathed penis."

But Justice Elizabeth Bennett disagreed, saying the woman had consented to sexual activity.

Sided with Groberman

She said she didn't think the Supreme Court of Canada judges meant to distinguish sex with a condom from sex without in defining "the basic physical act" of intercourse, in part because that could lead to the criminalization of defective condoms.

However, she still thought the lower court judge was wrong — because Bennett said there was enough evidence to conclude that Kirkpatrick had obtained the alleged victim's consent through fraud to warrant holding a new trial.

Saunders — the judge who agreed with Groberman on the first part of the ruling — sided with Bennett and against Groberman on that part of the opinion.

Kirkpatrick's lawyer said his client is seeking leave to appeal the decision to the Supreme Court of Canada.