B.C. woman says Mounties need better training on investigating condom-free 'stealthing' assaults

Note: The story contains graphic details.

On paper, Anna DiBella's experience seems like a victory. She reported a sexual assault to police. Her alleged perpetrator now faces charges.

But DiBella said she struggled for weeks to convince the RCMP to investigate and charge a man for taking off a condom during sex without her knowledge. It was a process, she said, that left her feeling vulnerable all over again.

"I was feeling worse than I had just being a sexual assault victim at this point, because I felt very unprotected. Like, there's been a crime committed against me," she said.

"If someone's broken a law, why does no one care? And I felt ... why are they empowering this guy?"

In early April, the Surrey, B.C. resident went on a date with someone she met on the online dating app Bumble. The evening started off well, she said.

She brought him back home, she said, where they began consensual sex with a condom. DiBella said the man lost his erection and asked her to let him remove the condom. She said she insisted he keep it on because she wasn't on birth control.

At one point, she said, he asked her to turn over.

"And then next thing I know, he was ejaculating on my back. I was confused why that was happening. And I said, 'What's going on? Are you still wearing a condom?' He said, 'No, I only took it off for a little bit," she said.

"I was just feeling really upset and violated and I wasn't sure if it was a crime. But it sure felt like it was rape."

After kicking the man out, DiBella called a local rape relief centre and learned that what had happened to her is sometimes called "stealthing."

The name refers to the practice of secretly removing a condom without consent during otherwise consensual intercourse. While it's not a new thing, Canada's courts are being asked to weigh in on the definitions of sexual activity and consent — and a stealthing case is now headed to the Supreme Court of Canada.

DiBella reported the incident to the RCMP the day after. Unwilling to let police show up at her home when her two small children were there, she made an appointment to give her statement at the station.

There's a potential sex offender out there. It's been a month, he could have done this to a bunch of other people- Anna DiBella

Before that happened, she said, she received a call from the investigating officer.

"He said, 'What exactly are you hoping to get from the police regarding this incident?' So I said, 'To investigate if there's a crime and, you know, bring it forward to my full rights under the law. And then he said, 'Well, you know, you consented to sex, so there's no rape or crime,'" said DiBella.

"And then he just said, 'Well, the problem is there's no forced sex.' And I said, 'No, there was forced sex, I was forced to have sex without a condom. I had no say in the matter.'"

DiBella said that exchange marked the beginning of her fight to get her case taken seriously. She began calling the detachment almost every day, asking why her case wasn't being investigated.

She said that a few weeks later, after speaking to multiple officers, she was told a warrant was out for the man's arrest.

RCMP says there was no reluctance

But when a week passed with no news of an actual arrest, she started calling the detachment again.

"I'm just pushing back, pushing back ... When they're telling me it's low priority, I'm saying it's not a low priority. Your priorities aren't aligning with society's priorities," she said.

"There's a potential sex offender out there. It's been a month. He could have done this to a bunch of other people."

The alleged offender was arrested and charged on May 16.

"It took seven cops for me to get that to happen," DiBella said.

DiBella said she wants to see frontline officers receive better training on consent and how to deal with sexual assault victims. She said her conversations with RCMP officers felt like something out of the "18th century."

Surrey RCMP disagrees with her version of events and said the first officer was simply asking questions as part of the investigation.

"I can confirm to you that there was no reluctance on the part of our officers to investigate the reported allegations of sexual assault," said Sgt. El Sturko in an email to CBC News.

"The B.C. Prosecution Service was consulted early on to provide advice and guidance to the officer in their investigation. This is a common practice when police are investigating complex files, or when there is limited reference case law available in the Criminal Code of Canada, such as in cases of stealthing ...

"Surrey RCMP completed a fulsome investigation that resulted in a sexual assault charge against the accused in this matter."

Sturko said officers don't get training on every possible sexual assault scenario in the Criminal Code, and no additional training has been offered.

A spokesperson for RCMP national headquarters in Ottawa said its sexual assault training does not specifically cover stealthing, but does cover sexual assaults involving consent obtained by fraud.

"Training also emphasizes the need for a partner to continuously seek informed consent from the other party, and that any activity where consent was not actively and affirmatively sought and granted could be investigated as a sexual assault," said Cpl. Kim Chamberland.

"RCMP training and our sexual assault best practice guide for investigators are continually reviewed and updated, as required, with new information, including case law and Supreme Court rulings."

Sex without a condom is legally different: B.C. court

No one knows how common stealthing is in Canada. In a 2019 online survey of 592 Canadian undergraduate students, 18.7 per cent reported that they had experienced the non-consensual removal of a condom during sex.

Lise Gotell, who researches sexual assault law at the University of Alberta, said that while it's not a new phenomenon, few stealthing cases have made it to a courtroom in Canada.

British Columbia, where DiBella lives, is one of the only jurisdictions where the law is clear on non-consensual condom removal, she said.

Last year, the Court of Appeal for British Columbia ordered a new trial for Ross McKenzie Kirkpatrick, who was acquitted of sexual assault after reneging on a promise to use a condom while having sex with a woman he'd met online.

Two of the judges agreed that consent to sex with a condom doesn't imply consent to sex without one.

"So in B.C., the law is now very clear that when you are consenting to sex with a condom, you are not consenting to sex without a condom. That's clear," Gotell said.

"In general, I would say that police have a very poor understanding of consent, especially when you get into intricacies or situations where the courts are kind of all over the place. Condom use is one of those areas of the law that's very confusing at this moment."

Police confused by consent: law professor

Complicating matters is a 2014 Supreme Court decision on a case involving a complainant who consented to having sexual intercourse with the accused on the condition he wear a condom. Without her knowledge, the accused — Craig Jaret Hutchinson — pierced holes in the condom. She became pregnant as a result.

The justices unanimously upheld his conviction— but they couldn't agree on why. The majority judgment held that the accused's condom sabotage constituted fraud and the woman's consent was nullified by that deception.

The majority concluded that the meaning of the "sexual activity in question" did not include the use of a condom. They said they were concerned that making the definition of sexual activity too broad would capture situations involving accidents — such as a condom breaking during sex.

The minority argued that, since the woman had consented to "safe" sex, the act of perforating the condom meant she'd never consented at all.

"What the Supreme Court said [is] that condom use is actually collateral to consent," Gotell said. "But they [the majority] said that condom use is a method of birth control, it's not a sexual activity."

Gotell said looking at sexual assault through a fraud framework has led to uncertainty in the lower courts about the role of condom use in consent to sexual activity.

"This has caused a lot of problems because some judges have actually acquitted on the basis that there was no deception involved," she said.

"After Hutchinson ... what you find is police struggling to understand how to interpret what I call non-consensual condom removal."

She said she is hoping other provinces will be provided with more clarity when the Kirkpatrick case is heard by the Supreme Court of Canada.

Gotell and others are acting as interveners in the upcoming Kirkpatrick hearing. They'll be arguing that the Hutchinson decision got it wrong.

"Condom use needs to be seen as part of the consent inquiry," Gotell said.

"When you consent to oral sex, you're not consenting to intercourse, right? That's very clear. So when you're consenting to intercourse or some form of penetration with a condom, you're not consenting to some form of penetration without a condom."

DiBella said she fears that until the courts clarify the law on stealthing, other cases might fall through the cracks.

"I'm obviously in a fighting mood these days. There's probably a time in my life where I wouldn't have fought so hard," she said.

"I knew my rights and that I deserve better."