For Immediate Release – Friday, July 29, 2022
Ottawa, unceded Algonquin Anishinaabe territory—Today, the Supreme Court of Canada (SCC) released a decision in R. v Kirkpatrick that will result in a broader recognition of non-consensual condom refusal or removal as sexual assault under the law.
The Court confirmed that a person can make their partner’s condom use a condition of their consent to a sexual act. When their partner then refuses to wear a condom, secretly removes their condom during sex (a practice often called “stealthing”), or otherwise breaks a promise to wear a condom, this can constitute sexual assault.
“Today’s decision is an important clarification of the meaning of consent, which affirms the centrality of dignity, personal autonomy, sexual agency, and equality to Canadian sexual assault law. To put it simply, every person has the right to control how they are touched at every stage of a sexual interaction,” says Kate Feeney, West Coast LEAF Director of Litigation.
Research has shown that non-consensual condom refusal and removal are a widespread and devastating form of sexual violence. Until today, there was a lack of clarity in the law over whether these violations could constitute sexual assault in and of themselves, or could only override a survivor’s legal consent in a narrow set of circumstances where the accused person lied about their condom use and there was a risk of serious physical harm to the survivor. This physical harm was typically limited to pregnancy and certain sexually transmitted infections (STIs).
This narrow approach did not address the experiences of disempowerment and violation reported by many people who have been on the receiving end of non-consensual condom refusal or removal. It also did not address the many cases where these violations do not result in a physical health risk (such as where the accused person does not have an STI, or the survivor is using birth control or is not able to become pregnant).
West Coast LEAF intervened to argue that this legal framework also undermined the equality of survivors by requiring proof that the accused’s actions posed significant (not merely speculative) health risks. This opened the door to invasive and regressive inquiries about the survivor’s physical, sexual, and reproductive health before and after the assault.
“Survivors who engage with the criminal justice system already face steep barriers to accessing justice. Invasive inquiries to establish physical harm from condom refusal or removal are not only a distraction from the underlying harm to the survivor’s dignity and autonomy, but also make the court process even more stressful or re-traumatizing for survivors,” continues Feeney.
West Coast LEAF is represented in this case by pro bono counsel Jessica Lithwick and Jennifer Crossman of Sugden, McFee and Roos LLP, and Kate Feeney of West Coast LEAF.
Kate Feeney, Director of Litigation, West Coast LEAF