Comment People who do not wear condoms during sex despite their sexual partners’ requests can be convicted of sexual assault, the Supreme Court of Canada ruled Friday, potentially setting an important legal precedent on the issue of consent. The decision concerns the case of a Canadian man accused of not wearing a condom against his partner’s wishes. Lawyers and rights advocates hailed the decision as “significant” and “fundamental for the right to sexual autonomy”. “This is an important development for women and others who have sex with men,” said Isabel Grant, a law professor at the University of British Columbia who specializes in violence against women and sexual assault by men. “The decision is internationally important,” he said. “There is now a clear statement in Canadian law that stealthing – the deceptive removal of a condom during sex – constitutes sexual assault.” The complainant in the case, a woman whose name has not been released, says she met Ross McKenzie Kirkpatrick, from British Columbia, online in 2017. The two met in March of that year for about two hours before deciding to have sex . According to the woman’s statement, she told the accused that she insisted on using condoms and he agreed. They met again at his home and had sex twice, the first time with a condom, he told the court in 2018. The second time, according to the Supreme Court, the complainant was unaware that Kirkpatrick was not wearing a condom because the circumstances were dark. Kirkpatrick claimed he asked “does it feel better than last time?”, in reference to not using a condom, but the complainant thought he was referring to the sexual attitude. He was charged with sexual assault and acquitted in 2018 after the judge said there was no evidence the woman had not consented to the physical act of intercourse, regardless of the use of a condom. But the British Columbia Court of Appeal ordered a new trial, finding the first judge erred in dismissing the sexual assault charge for lack of evidence. Mr. Kirkpatrick appealed to the Supreme Court of Canada. Supreme Court of Canada hears case over alleged condom fraud Kirkpatrick asked the judge to implement the Supreme Court ruling 2014 case defining the definition of consent. The 2014 case, R v Hutchinson, was about a woman who agreed to have sex with her boyfriend, Craig Jaret Hutchinson, only if he wore a condom. Hutchinson punched holes in the condom and impregnated his girlfriend. He was convicted of sexual assault and his conviction was upheld by the high court with a majority of judges holding that the condom sabotage constituted fraud. Mr Kirkpatrick argued that, unlike Hutchinson, there was no evidence of fraud in his case. However, speaking for the majority of justices on the Supreme Court, Justice Sheilah L. Martin said that when the use of a condom is a condition of intercourse, “there is no agreement to the physical act of intercourse without a condom.” The condom becomes part of the “sexual activity in question” and should be considered separate and equal to ordinary sexual consent. “Just because yes means yes and no means no, ‘no, no without a condom’ can’t mean ‘yes, without a condom,’” Martin wrote. Pam Hrick, executive director of the Women’s Legal Education and Action Fund, said the ruling “is an important statement that sexual partners must respect the decision to insist on condom use during sex.” He added: “This is fundamental to the right to sexual autonomy and equality.” The court decided it Hutchinson does not apply to Kirkpatrick, but still applies in cases involving sabotage and condom fraud. In May, a woman in Germany was found guilty of sexual assault for punching holes in her partner’s condoms. A German court likened the woman’s actions to theft. In Britain, stealthing is considered rape, but there was only one successful prosecution, in 2019, according to the BBC. A California law passed in 2021 made theft a civil offense, allowing victims to sue perpetrators in court.