People who do not wear condoms during sex after their sexual partner requests them to use protection can now be convicted of sexual assault, Canada’s Supreme Court has ruled, setting a precedent for other countries on safe sex and consent.
The court ruled that the practice, which is popularly known as “stealthing”, violates legal grounds of consensual sex.
In a majority decision on Friday, Justice Sheilah Martin said that when using a condom is a condition for sexual intercourse, “there is no agreement to the physical act of intercourse without a condom”.
The condom becomes part of the “sexual activity in question” and the partner’s wishes should not be considered separate from ordinary sexual consent.
“Since only yes means yes and no means no, it cannot be that ‘no, not without a condom’ means ‘yes, without a condom,’” Ms Martin wrote.
The ruling comes on the heels of a five-year-old case where a British Columbia man was accused by her partner of not using a condom despite her request. The woman later took preventive HIV treatment.
On Friday, the court ordered Ross McKenzie Kirkpatrick back to trial for alleged sexual assault in the case.
The complainant, whose name has not been released to protect her identity, said she met Mr Kirkpatrick in 2017. According to her testimony, they had sex twice in one night and the woman told the man to wear a condom during the act, and he agreed.
She told a court in 2018 that they had sex the first time with a condom. But she did not know that Mr Kirkpatrick was not wearing a condom the second time because the room was dark.
She testified that she thought Mr Kirkpatrick had gotten another condom when he turned to the bedside table, and only realised that he was not wearing a condom after he finished.
Mr Kirkpatrick’s lawyer Phil Cote has said his client never attempted to deceive the woman and made it clear during the act that he was not wearing a condom. Mr Kirkpatrick claimed that he asked her “does this feel better than the last time”, referring to the no use of condom. But the woman said she thought he was referring to the position.
Police charged Mr Kirkpatrick with sexual assault but he was acquitted in 2018 after a trial judge cited a lack of evidence.
British Columbia’s Court of Appeal then ordered a new trial in 2020 but Mr Kirkpatrick appealed to the Supreme Court of Canada.
With a 5-4 vote in the Supreme Court, the court has now ordered a new trial.
Justice Martin said: “Sex with and without a condom are fundamentally and qualitatively distinct forms of physical touching.”
“A complainant who consents to sex on the condition that their partner wear a condom does not consent to sex without a condom.”
Mr Kirkpatrick’s laywer said this will drastically change rules around sexual consent across the country.
“In Canada, consent is always in the moment. But what this decision does, it creates an element of consent far from the moment of sexual activity — in this case days or even a week before the sexual encounter,” he said.
“If there’s a moral to be taken from this for everyone, but particularly for men, is that you have to be sure there is active and engaged consent. And if you are not sure, you should ask,” he added. “But unfortunately, that’s not how sexual encounters go.”
The decision has, however, been hailed by rights advocates and lawyers.
“What will be interesting to see when Kirkpatrick gets tried again is how this inclusion of the deception under the sexual assault provisions instead of the fraud provisions ends up weighing out in terms of the decision of whether or not a sexual assault took place,” said Dawn Moore, professor of legal studies at Carleton University.
He said there may be an advantage for prosecutors if they can make a case for both fraud and sexual assault, but proving what happened in privacy remains challenging.
The UK has strict laws for stealthing, considering it as rape. Britain and Switzerland have convicted people for crimes related to removing condom during sex.
In the US, California state passed a law in 2021 to make stealthing illegal. The amendment in the law allows victims to sue their perpetrators in court but did not alter the criminal code.
