ANALYSIS: Reexamining the Definition of Sexual Assault

ANDREW LEE/CBC

Removing a condom, or not wearing one, without your partner’s consent and knowledge or ‘stealthing’, became illegal in the state of California on October 7, 2021. In Canada, the Supreme Court is hearing a case that could set that same precedent. 

Currently, in order to convict sexual assault in a case of ‘stealthing’, one must prove fraud, which under the Criminal Code then unverifies consent. However, within this context fraud is difficult to prove in court, because ‘fraud’ in this case could be as simple as a lie. The possible new alternative is to legally separate consent to sex with a condom and consent to sex without a condom, terminating the difficult extra step of proving fraud.

On November 3, 2021 the Supreme Court of Canada heard the case Ross McKenzie Kirkpatrick v Her Majesty the Queen (British Columbia). Mr. Kirkpatrick is being charged with sexual assault. The complainant (alleged victim of the crime) claimed she insisted on him wearing a condom during intercourse. On their first encounter he complied, however in a second encounter, Mr. Kirkpatrick did not wear a condom, which was unknown to the complainant until after the act.

According to the case summary from the Supreme Court, the case was originally acquitted by a no evidence motion, the trial judge referencing section 273.1(1) of the Criminal Code where it states “[consent means] the voluntary agreement of the complainant to engage in the sexual activity in question.” As well as section 265(3) where “no consent is obtained where the complainant submits or does not resist by reason ... (c) fraud.” The trial judge found no evidence of the complainant not giving consent to the sexual actvity and no evidence of fraud by the applleant, Mr. Kirkpatrick.

The Criminal Code describes fraud in section 380(1) as, “Everyone who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,”. Fraudulent behaviour in the context of sexual assault can be lying or giving false pretenses in order to obtain consent, which would then be nulified because of section 265(3), according to legal scholars.

However, the Crown appealed to the BC Court of Appeal and it was unanimously allowed. The Justices used R. v Hutchinson, 2014, a previous Supreme Court of Canada ruling to interpret the themes of fraud and consent. In R. v Hutchinson, the complainant agreed to the sexual actvity, but inisted on using a condom as a controceptive. Unbeknownst to the complainant, the appellant poked holes in the condom and this resulted in pregnancy. Hutchinson was charged with aggravated sexual assault, solidfied by his appeal to the Supreme Court being rejected.

Although a unanimous ruling, the Justices had differing thoughts on how to interpret R. v Hutchinson in regards to the Kirkpatrick case. 

Groberman J.A and Saunders J.A concurred that the Hutchinson case majority had made a lawful differentiation between consent to sex with a condom and consent to sex without a condom. Therefore the complainant in this case had not consented to the sexual act under section 273.1. 

Bennett J.A opposed, suggesting that R. v Hutchinson proved that condom use was to be considered under section 265(3), whether consent was impaired by fraud. Justice Bennett agreeing with the trial judge in that there was not evidence to suggest the complainant did not consent to the sexual actvity. However, Bennett J.A did rule that the consent was then vitiated by fraud, because the appellant did not disclose he was not wearing a condom, therefore being dishonest, which caused deprivation of the complainant. Saunders J.A disagreed in this sense.

Justice Groberman opposed the trial judge’s no evidence motion of fraud, concluding that there was in fact evidence of the appellant’s fraudulent behaviour. 

The Supreme Court trial has not been archived yet and the judgement is reserved for now.