Top court reviewing case involving condom use and consent 

Warning: this story includes graphic sexual details

Canada's top court heard arguments today about whether a B.C. man who allegedly ignored a woman's request to wear a condom during sex should stand trial — a case that could have broad impacts on the legal interpretation of consent and sexual assault.

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

The complainant, whose identity is protected by a publication ban, met Ross McKenzie Kirkpatrick online back in 2017. She testified that she had insisted he wear a condom during sex. 

They met up and had sex twice in one night, the first time with a condom. On the second occasion, the woman said, Kirkpatrick briefly turned to the bedside table; she said she thought he was getting another condom.

He was not.

The complainant went to the police, saying she didn't consent to sex without a condom and never would have done so if asked.

The original trial judge acquitted Kirkpatrick in 2018, finding there was no evidence that the complainant had not consented to the sexual activity in question. 

Last year, the Court of Appeal for British Columbia unanimously ordered a new trial — although the judges' reasons for doing so differed.

Two of the judges said that sexual intercourse with a condom is different from sexual intercourse without one — and the complainant had not consented to sex without a condom. The dissenting judge found there was evidence Kirkpatrick had defrauded the alleged victim.

The Supreme Court justices were then asked to weigh in. After a short one-day hearing In Ottawa today, they are taking the matter under advisement.

Sexual activity vs. fraud

The Crown is asking the justices to decide whether "no, not without a condom" means "yes, even without a condom."

"The case on appeal presents this court with an opportunity to answer these questions and to clarify the law of consent," wrote the Crown in its brief.

Complicating matters is a 2014 Supreme Court decision all sides cited today.

That case involved a woman who consented to having sexual intercourse with the accused  — Craig Jaret Hutchinson — on the condition he wear a condom. Without her knowledge, Hutchinson pierced holes in the condom and she became pregnant.

The Supreme Court justices upheld his conviction, with the majority writing that his condom sabotage constituted fraud and that the woman's consent was nullified by that deception.

The majority also 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.

Kirkpatrick's lawyer Phil Cote argues the top court has ruled already on the definition of sexual activity and the B.C. Court of Appeal's decision should be thrown out.

He said his client never tried to deceive the woman. Cote cited a moment about a minute into the intercourse when, he said, his client asked the woman if it felt better. The woman said at the time she thought he meant the position but realized afterwards he meant the lack of condom.

"That's a real critical piece because someone who asks that question isn't trying to deceive anyone," Cote said before the hearing.

"And yet, if the respondent is successful, even though he didn't have the intent to do it, he now is culpable for a criminal act, and would end up with a criminal record, could be registered as a sex offender. The outcome is very, very serious."

Interveners seeking clarity for 'stealthing' cases

Interveners are hoping the Supreme Court's eventual ruling will offer more legal clarity on "stealthing" — a slang term used to describe non-consensual removal of a condom during sex.

"The law doesn't reflect people's lived experiences," said Kate Feeney, a lawyer with West Coast Women's Legal Education and Action Fund (West Coast LEAF). The advocacy group is an intervenor in the case.

"If you've only agreed to sex with a condom and that agreement is violated, that means you've been subjected to touching and likely contact with bodily fluids that you didn't agree to. And it's that core violation, that core consent violation, that we think needs to be recognized in the law."

The law doesn't reflect people's lived experiences.- Lawyer Kate Feeney

Just last month, California became the first U.S. state to make it a civil offence for someone to remove a condom without their partner's consent.

Feeney said the fraud lens used in Hutchinson can be a problematic way to prosecute cases of stealthing because it applies when there is a significant risk — such as an unwanted pregnancy or sexually transmitted infection — and undermines a victim's dignity and autonomy.

"The fraud test really only captures a narrow set of situations and victims," she said.

"If there's a deception but your partner doesn't have any sexually transmitted infections, or perhaps you're using a different form of birth control so there's not a realistic possibility of pregnancy, the second test — the second aspect of the fraud test — isn't met and therefore the criminal law protection doesn't apply."

Cote said his client's case is wrongly being seen as a landmark case on stealthing and larger questions about sex and autonomy.

He said many of the intervenors are asking the Supreme Court to essentially create a new law that says the physical act includes wearing a condom.

"This is something that causes public debate, and reasonable people can disagree with it, but that should go to Parliament. That shouldn't go to the Supreme Court of Canada," Cote said.

Such a change to the law would raise questions about inadvertent non-compliance, he argued.

"You have to ask yourself, is that really the kind of behaviour you want to criminalize? I think the answer is no, obviously, we don't want to criminalize that," he said.

Feeney said defining stealthing as a violation of consent within sexual assault law would offer women and men, and the lower courts, clarity.

"It's important to understand sexual assault law as something that's constantly evolving and in dialogue with conversations taking place in broader society," she said.

"We live in a society where rape myths and stereotypes have been prevalent and we're still grappling with those, and those have sometimes limited our understanding of what sexual assault is."