If a person does not use a condom during sex, despite being asked to do so by their partner, they may be guilty of sexual assault, the Supreme Court ruled Friday in a ruling that scholars and lawyers are calling extremely important. The court’s decision makes it clear that sex with a condom and sex without a condom are not the same thing – stating that the two acts are “fundamentally and qualitatively different”. “A complainant who consents to sex on the condition that his partner wears a condom does not consent to sex without a condom,” wrote Justice Sheilah Martin for the majority. “Just because yes means yes and no means no, ‘no, no without a condom’ can’t mean ‘yes, without a condom.’ In recent years, there has been increased awareness of non-consensual condom refusal or removal. The term can refer to a variety of violations, from a man refusing to wear a condom when asked. He pretends to put a condom on, but doesn’t. and the surreptitious removal of a condom partly through sex, which has been referred to as “theft”. In a 2019 study of undergraduate students at a Canadian university, among 334 participants who said they had, at some point, had penetrative sex with a male partner and used a condom, 18.7 percent said they had had a condom removed without consent . “There is a growing public debate about non-consensual condom refusal and condom removal, and what we saw today is that the law is responding to that debate,” said Kate Feeney, director of courts at the West Coast Legal Education and Action Fund. it was interference in the case. The court decision stems from a sexual assault allegation against Ross Kirkpatrick, a BC man who in March 2017 met a woman to discuss the possibility of having sex. During that conversation, the woman, whose identity is protected by a publication ban, said she made it clear she would only have sex with him if he used a condom. On their second date, the couple had sex twice. The first time, Mr. Kirkpatrick used a condom. The second time, the woman thought she had a condom on, but when he ejaculated inside her, she realized she didn’t, according to the woman’s testimony, which is cited in the court order. Several experts told The Globe that Friday’s decision sets an important precedent in Canada – and possibly beyond. “It’s certainly important for women in this country — it’s also important internationally,” said Lise Gotell, a professor of women’s studies and gender at the University of Alberta. “In no other jurisdiction now is there such clarity in the law that when you consent to sex with a condom, you are not consenting to sex without. … This is an incredibly important decision.” Initially, a provincial court in British Columbia dismissed the charge against Mr. Kirkpatrick, applying a pattern from a Supreme Court decision in a sexual assault case known as Hutchinson, in which a man punctured condoms without his partner knowing. In that case, the court ruled that the woman had consented to “the sexual activity in question” but that the consent was obtained by fraud, and upheld the man’s conviction. The district court ruled that because the woman agreed to have sex with Mr Kirkpatrick, she consented to “the sexual activity in question” and there was no evidence of fraud. The Supreme Court unanimously ruled in favor of a new trial in Mr. Kirkpatrick’s case. The Supreme Court decision makes it clear that non-consensual condom removal can be assessed under the Criminal Code’s definition of consent, and not by proof of fraud, although it states that cases specifically involving “condom sabotage” must evaluated via Hutchinson. “It makes clear that everyone has the right to insist on using a condom and where it’s not used – by any means, deceptive or not – that’s sexual assault,” said Isabel Grant, a professor at the Allard School of Law at the University of British Columbia. Colombia. While the justices unanimously agreed that a new trial was warranted in the Kirkpatrick case, their reasoning differed, with five siding with Judge Martin and four dissenting separately. The Morning Update and Afternoon Update newsletters are written by Globe editors, giving you a concise summary of the day’s most important headlines. Sign up today.
