Supreme Court rules sex without a condom requires separate consent from sex with a condom
CBC
The Supreme Court of Canada has ruled in a 5–4 decision that condom use is legally a part of sexual activity, and that sex without a condom requires separate consent from sex with a condom.
They've unanimously ordered a new trial for the appellant, a B.C. man who did not use a condom during sexual intercourse with a woman who insisted beforehand that he wear one.
The case could set an important legal precedent on consent and sexual assault.
A previous version of this story is below
Canada's top court is expected to issue a decision Friday in the case of a B.C. man accused of ignoring a woman's request to wear a condom during sex — a decision that could set an important legal precedent on consent and sexual assault.
Supreme Court justices are set to define "sexual activity" and rule on whether sex with a condom is a type of sexual activity distinct in law from sex without one.
Ross McKenzie Kirkpatrick met the complainant online in 2017 (the complainant's name is protected by a publication ban). The two had sex twice in one night. The complainant said she insisted beforehand that Kirkpatrick wear a condom.
Kirkpatrick wore a condom the first time they had sex but did not the second time. The complainant testified that she thought Kirkpatrick had gotten another condom when he briefly turned to the bedside table.
The complainant testified that she had not consented to intercourse without a condom.
Police charged Kirkpatrick with sexual assault but a B.C. judge acquitted him. The judge said there was no evidence the complainant had not consented and no evidence that Kirkpatrick had acted fraudulently.
In 2020, the British Columbia Court of Appeal unanimously ordered a new trial — but the judges gave different reasons for their decisions.
Two of the judges said that sexual intercourse with a condom is legally distinct from sexual intercourse without one, and that the complainant had not consented to the latter. A third judge said Kirkpatrick defrauded the complainant by not telling her he wasn't wearing a condom.
Kirkpatrick appealed to the Supreme Court, arguing that the appeal court's decision should be thrown out.
In the November 2021 hearing before the Supreme Court, both sides of the Kirkpatrick case cited a 2014 Supreme Court decision — R. v. Hutchinson.
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