The Supreme Court of Canada decided today that those who disregard sexual partners’ requests to use condoms during intercourse can be found guilty of sexual assault.
The Supreme Court found in a majority judgement that “stealthing,” or appearing to wear a condom or removing one before intercourse without the partner’s permission, might violate the legal justifications for consensual sex.
According to Justice Sheilah Martin’s majority opinion, “sex with and without a condom are essentially and qualitatively separate types of physical contact.”
A complainant who agrees to have sex with their partner only if her partner wears a condom “does not consent to have sex without a condom”
In the instance of Ross McKenzie Kirkpatrick, a British Columbian who refused to use a condom despite the complainant’s prior insistence that he does so, the court-mandated a fresh trial. The court simply mandates a new trial using the existing evidence rather than reaching a verdict about Kirkpatrick’s guilt or innocence. Online in 2017, Kirkpatrick met the complainant (whose name is kept confidential because to a publication restriction). One night, the two had two sex sessions. The complainant said she made Kirkpatrick wear a condom in advance.
The first time they had intercourse, Kirkpatrick used a condom; the second time, he did not. According to the complainant’s testimony, when Kirkpatrick momentarily moved to the bedside table, she assumed he had acquired another condom. According to the woman, Kirkpatrick ejaculated inside of her before she discovered he wasn’t using a condom.
The West Coast Legal Education and Action Fund (LEAF), a group advocating for gender equality and a party to the litigation, applauded the verdict.
The Supreme Court improved the clarity of Canadian law on consent, according to Kate Feeney, director of litigation for West Coast LEAF.
Whether you are contacted by a penis with a condom or one without, Feeney told CBC News, “every individual has the right to determine how they are touched at every level of the sexual relationship.”
