Not Wearing a Condom Can Now Be a Form of ‘Sexual Violence’

Sexual Assault Law
Libby Telford
August 8, 2022

Carceral feminist theory gets another win in the Supreme Court of Canada.

There are multiple criminal code provisions, multiple legal precedents, multiple interpretations, multiple interest groups, and multiple lawyers that take thousands of hours to decide if something that happened between two casual lovers in a bedroom over a 45-second time period is a criminal act or not. 

So much for “the state has no business in the bedrooms of the nation”, as said by Pierre Trudeau in 1969. 

How Safe Sex Got To the Supreme Court of Canada 

Ross McKenzie Kirkpatrick – who has yet to be convicted of sexual assault as of the writing of this article – is at the centre of a recent Supreme Court of Canada (SCC) decision that aimed to expand the interpretation of ‘sexual activity’ for the purpose of casting the net a little bit wider to convict men for sexual assault if they fail to put on a condom when his sexual partner only consented to sex on the condition he wears a condom.

“Is the criminal law to be so indefinite and to be so open-ended that one would not know from day to day whether you’re incurring criminal liability or not?” - Justice Rowe, Kirkpatrick SCC hearing

Kissing, oral sex, petting, intercourse, digital penetration, and the use of sex toys are already recognized in law as being criminal if not specifically having obtained consent to escalating sexual activity. They are specific sexual acts that require advance consent either verbally or through actions. In Kirkpatrick, the legal arguments were anchored around whether or not having sex without a condom constitutes sexual activity that is different from sex with a condom, and whether or not having sex without a condom without the sexual partner’s consent could constitute fraud.

“Attaching a sex toy to one’s penis would transform any vaginal intercourse into a different sexual activity for which consent is required…How can the same analysis and conclusion not be applied to the use or non-use of a condom?” – Attorney General of Alberta, Kirkpatrick SCC hearing

After Kirkpatrick was acquitted by the trial judge as a result of a successful (but errant) no-evidence motion, the Crown prosecutor appealed it and the case became so complex that two separate panels of judges each interpreted differently the Criminal Code provisions for the meaning of consent, for vitiation of consent by fraud, and their relevance to existing case law - R. v. Ewanchuk 1999 CanLII 711 (SCC) and R. v. Hutchinson 2014 SCC 19 (CanLII) when guiding their decision in ordering a new trial for Kirkpatrick.

Disagreement within the Hutchinson decision complicated matters further. It was Canada’s first case deciding on whether or not poking holes in a condom was deemed aggravated sexual assault because it vitiated the sexual partner’s consent by way of fraud.

The majority Supreme Court panel of justices for Kirkpatrick partly relied on arguments in an academic paper written by feminist scholars Isabel Grant and Lise Gottel, “Non-Consensual Condom Removal in Canadian Law Before and After R. v. Hutchinson” (2021) in pointing out perceived deficiencies in Hutchinson.

The paper’s abstract reads in part, “Using empirical studies and the insights of feminist theory, we explore the nature of the harms caused by NCCR [Non-consensual Condom Removal] and contend that this pervasive practice constitutes sexual assault. We then critique the decision of R v Hutchinson, which held that condom sabotage does not negate subjective consent, ignoring the dignitary harms of NCCR”.

Thus began granular analysis at the Supreme Court through a feminist lens of what sexual activity means, when consent can be vitiated by fraud, what particular act should or should not constitute fraud, and whether Hutchinson should be ‘overturned’. All in the context of male perpetration against women, and preserving the woman’s right to sexual preference, equality, autonomy, and dignity. 

“[What if] I don’t want to have sex with a body part, I want to have sex where I’m being touched by some plastic thing?” – Justice Moldaver, Kirkpatrick SCC hearing

The word “equality” in the context of gender-based sexual violence is mentioned 18 times in the Kirkpatrick decision. While the risk of “wrongful conviction” is mentioned twice only in the context of overturning precedent to abolish the death penalty as a result of a societal change in views.

The primary problem the Crown and the feminist legal interveners had with the Hutchinson decision was that it excluded birth control measures and the presence of STDs as qualifiers for the definition of sexual activity, therefore they could not form part of the sexual activity consented to. 

They argued the Hutchinson decision should in effect be ‘overturned’ by the SCC, when instead, the SCC need only to clarify the scope of sexual activity to include a distinction between sexual intercourse without a condom, or with a condom, leaving the Hutchinson decision intact for its original purpose - condom sabotage.

The Ruling In a Nutshell

Justice Sheilah Martin ruled for the majority in R. v. Kirkpatrick 2022 SCC 33, “Non-consensual condom refusal or removal is a form of sexual violence generating physical and psychological harms… Conditioning agreement to sexual touching on condom use goes to the heart of the specific physical activity in question and the existence or non-existence of subjective consent, and there is no need to resort to the doctrine of fraud and its stringent legal requirements.

The Hutchinson decision governing condom sabotage remains in place.

Is the Decision Gender-neutral or Misandric?

One side effect of this decision, whether intentional or unintentional, is that there is no commentary on how such consent or vitiation of consent can apply to men if the roles were reversed and women refused or lied about birth control measures or deceived a male partner resulting in a pregnancy the man did not want.

A recent case out of Germany grappled with that very scenario and a court convicted a woman for poking holes in her casual lover’s condom. It was deemed an act of “stealthing” (the act of surreptitiously removing birth control measures) and therefore a sexual assault. Stealthing is a relatively new legal term appearing in criminal courts referring mainly to men as perpetrators of this crime.

The Barbra Schlifer Commemorative Clinic (BSCC) was one of seven interveners that had an interest in the Kirkpatrick case. Three of those groups are known feminist legal groups regularly appearing in criminal sexual assault appeals with feminist legal theories that sometimes have the effect of infantilizing women or elevating women to the superior sex deserving of the utmost protection in criminal court proceedings beyond that of defendants who may be innocent of what they are accused of.

“Condom use should go to the sexual activity in question… To hold otherwise would give women more control over their bank accounts than their bodies.” – Joanna Birenbaum of BSCC, Kirkpatrick SCC hearing

The BSCC may be best known for assisting Mandi Gray in her false sexual assault allegation against Mustafa Ururyar and arguing for monetary restitution orders against the convicted accused in criminal sexual assault cases to pay for the complainant’s legal fees “incurred to support her through, and protect her dignity and equality rights in, a criminal sexual assault proceeding”. Ururyar’s wrongful conviction was overturned and no restitution was ordered for either Gray or Ururyar.

Is There A Conflict of Interest?

Whatever their effect, groups like the BSCC are funded in part by the federal government of Canada and one has to wonder if there is a conflict of interest there. Canada’s justice minister and attorney general, David Lametti, has been giving hundreds of millions of dollars to various women’s equality organizations, including BSCC since he was appointed to office. 

Thanks to more carceral feminist theory in the Supreme Court of Canada, Canadian men can add another item to the list of sex acts that can easily be over-criminalized. Having casual consensual sex without a condom can now inadvertently lead to a sexual assault conviction, an obligation to the sex offender registry, and the stigmatizing label of “rapist”: That is, if the complainant becomes pregnant or says she did consent to sexual intercourse but not without a condom and a jury or judge believes her. 

What Does This Mean for the Falsely Accused?

Some people reading this article may be wondering how it’s possible to prove in a criminal court whether or not the man wore a condom if she says he didn’t, and he says he did, or that she insists that a condom was a condition. You may assume the woman has to somehow prove her assertion that she required him to wear a condom and that he failed to put one on.  After all, innocent until proven guilty and it is the prosecution’s burden to prove the accused man committed a crime, right?

Not quite.

Well-entrenched feminist legal theory in Canadian case law and Criminal Code provisions resolves that ‘problem’ by allowing the courts to believe the woman is truthful by default, shifting the burden on the accused man to prove he took reasonable steps to obtain her explicit consent to sexual activity.

The consent principle dictates that she has to consent every step of the way and he must prove that he sought her active, enthusiastic consent. Proving he took reasonable steps to obtain consent becomes his only viable defence, short of having a video of the encounter. Keep in mind, that if men have a video of the sexual encounter they can also be charged with voyeurism, and the prosecution can use the video to suggest the complainant appears too intoxicated to voluntarily consent. 

It remains to be seen how the Kirkpatrick decision will affect his new trial. According to Kirkpatrick’s factum filed with the Supreme Court of Canada, he told police in his initial interrogation that he and the complainant discussed safe sex in their initial meeting, but that “there was no agreement between them that he had to wear a condom during vaginal intercourse”. Whether or not the defence evidence will be deemed credible requires a retrial with a fair and neutral trier of fact, uninfluenced by the carceral feminist taint.