We’re headed to the Supreme Court of Canada tomorrow, for a case that has huge implications for consent law. R. v Kirkpatrick will decide whether it is sexual assault under the law when a person insists their partner wear a condom and their partner then removes it without consent or sabotages the condom.
Non-consensual condom removal (often called “stealthing”) has gained greater public attention in recent years, and courts in multiple jurisdictions are grappling with this issue right now. Just last month, California Governor Gavin Newsom signed into law a bill that makes stealthing illegal, making California the first US state to acknowledge non-consensual condom removal as a violation of consent. Several countries including the UK, Germany, and Switzerland have also prosecuted stealthing as sexual assault.
But the law in Canada remains unsettled. The current legal approach is based on a 2014 case called R. v Hutchinson, in which the Supreme Court of Canada took a narrow view of condom sabotage as a health issue, deciding that it could only constitute sexual assault where there is a risk of serious physical harm, defined as pregnancy or sexually transmitted infections (STIs).
But this very narrow definition does not address the experience of disempowerment and violation reported by many people who have been on the receiving end of stealthing or condom sabotage. Nor does it address the many cases where stealthing or sabotage does not result in a physical health risk (such as where the accused does not have an STI, or the survivor is using other birth control or is not able to become pregnant).
From West Coast LEAF’s perspective, this legal framework puts the survivor in the position of having to show that the accused’s actions posed significant (and not merely speculative) health risks. This opens the door to invasive and regressive inquiries about the complainant’s sexual and reproductive health before and after the assault.
We know from our many years of work on the rights of survivors that there are already huge barriers within the criminal law system to reporting and seeking justice for sexual assault. Invasive inquiries to establish physical harm from stealthing or sabotage can make the court process even more stressful or re-traumatizing for survivors. It’s this perspective that we will be bringing to court tomorrow.
You can watch the livestream of the hearing on the Supreme Court of Canada website starting at 6:30 a.m. PST.
We are grateful to pro bono counsel Jessica Lithwick and Jennifer Crossman of Sugden, McFee, and Roos LLP, who join our own Kate Feeney in representing West Coast LEAF in this case.