This case is about whether the Criminal Code recognizes that a person can consent to sex on the condition that their partner wears a condom. When a person insists on condom use, does their partner commit sexual assault if they sabotage their condom, remove their condom during sex without their partner’s knowledge (a practice often called “stealthing”), or otherwise break their promise to wear a condom? Research has shown that these types of violative condom practices are a widespread and devastating form of sexual violence. However, the law has thus far only recognized violative condom practices as sexual assault in a narrow set of circumstances.
It is commonly understood that the Supreme Court of Canada rejected condom use as a possible condition of consent in a 2014 case called R. v Hutchinson. In that case, Mr. Hutchinson engaged in repeated acts of condom sabotage by poking holes in his condoms. The complainant only learned about the condom sabotage after she became pregnant.
In deciding Hutchinson, a narrow majority of the Supreme Court was cautious about creating a broad definition of consent under which any number of conditions could result in criminalization. The majority thus concluded that a person’s consent only covers the basic physical act itself, its sexual nature, and their partner’s specific identity. However, fraud related to condom use, such as Mr. Hutchinson’s condom sabotage, could vitiate (i.e., invalidate) a person’s consent.
Fraud exists in cases where the accused deceived the complainant about their condom use and where the accused’s actions posed significant health risks to the complainant (i.e., a significant risk of infection or an unwanted pregnancy). This analysis is problematic because it ignores the many cases of violative condom practices where one or both elements of fraud are not present. Further, it understands the harms of violative condom practices to be solely health-related, even though these practices also undermine the victim’s dignity and autonomy.
R. v Kirkpatrick provides the Supreme Court with the opportunity to revisit its analysis in Hutchinson. In Kirkpatrick, the complainant told Mr. Kirkpatrick that she always required condom use by her sexual partners. Mr. Kirkpatrick allegedly agreed to this condition before the parties had sex with a condom. Later that night, the parties had sex again while the complainant was under the mistaken belief that Mr. Kirkpatrick was wearing a condom.
The trial judge acquitted Mr. Kirkpatrick, finding that Mr. Kirkpatrick did not deceive the complainant about his lack of condom use and thus did not commit fraud. The BC Court of Appeal overturned the trial decision, stating that the Hutchinson analysis, which arose from a case involving condom sabotage, had been misapplied to a case where the accused broke his promise to use a condom. The Court of Appeal said that a person can make condom use a condition of their consent because there are meaningful physical differences between being penetrated with a condom and being penetrated without a condom. Sex with a condom is therefore a different “basic physical act” than sex without a condom.
West Coast LEAF’s involvement
West Coast LEAF successfully sought leave to intervene in this appeal to make arguments about the effects of the fraud analysis on the complainant’s experiences of the criminal justice system. The need to show that the accused’s actions posed significant (and not merely speculative) health risks to the complainant opens the door to invasive and regressive inquiries about the complainant’s sexual, reproductive, and mental health before and after the assault. These inquiries only serve to exacerbate complainants’ pre-existing vulnerabilities within the criminal justice system.
This intervention builds on West Coast LEAF’s longstanding work to address the rights and interests of sexual assault survivors within and outside the criminal law system. Currently, West Coast LEAF and WAVAW are jointly intervening in R. v J.J. to make submissions about the importance of the complainant’s participatory rights in evidentiary applications in criminal sexual assault trials. In 2019, West Coast LEAF was part of a coalition which intervened in Maia Bent, et al. v Howard Platnick, et al. and 1704604 Ontario Limited v Pointes Protection Association, et al. to argue for a robust application of anti-SLAPP legislation to defamation suits against sexual assault survivors. West Coast LEAF has also published a report entitled We Are Here, which discusses the barriers faced by survivors who seek justice through the criminal law system, and a toolkit for complainant counsel in sexual assault criminal cases. Both publications are part of our Dismantling the Barriers to Reporting Sexual Assault project.
West Coast LEAF will file its factum in this case in August 2021 and the hearing of the appeal will be in November 2021. The hearing will likely take place by videoconference.