Losing a condom without permission can be tantamount to sexual assault

The Supreme Court has ordered a new trial in a case where a man accused of sexual assault was said to be “dishonest” by failing to wear a condom during sex, as requested by the complainant.

Therefore the highest court of the country refused to acquit Ross McKenzie Kirkpatrick, instead referring the case to the Provincial Court of British Columbia. So the latter must decide, at the end of a new trial, whether Mr. Kirkpatrick who committed sexual assault.

In her 187-page decision written for a majority of five of the nine justices of the Supreme Court, Judge Sheilah L. Martin therefore did not take a final position on this point. He notes, however, at the end of his analysis, that the refusal to wear a condom can represent a violation of consent during a sexual relationship.

“Voluntary consent to intercourse with a condom does not mean consent to intercourse without a condom, because consent cannot be inferred from the circumstances or from the relationship between the accused and the complainant”, we read . Therefore we cannot exclude the “necessary use of a condom” from the concept of consent, ruled the Supreme Court.

He was called last year to preside over a British Columbia case in which a plaintiff told a new sex partner, Mr. Kirkpatrick, that he would only have sex with her if she was wearing a condom. The two met online in 2017 and agreed to have sex at Mr. Kirkpatrick. The plaintiff was then 22 years old.

The fact that Mr Kirkpatrick used a condom the first time they had sex led the complainant to think he was wearing one when they started having sex the second time, she told the court, after filing a complaint for of sexual assault. But that wasn’t the case, a fact he says he didn’t realize until he ejaculated.

The complainant was then “shocked and panicked”, according to his testimony in court. He also told Mr. Kirkpatrick for her fear of getting pregnant or contracting a sexually transmitted infection. When she asked him why he didn’t use a condom during sex, he allegedly argued that he was “too happy” to do so. The man also found it “very funny” that the complainant said he was the victim of a sexual assault.

However, “if wearing a condom is a condition of sexual intercourse, it is part of the sexual activity to which the person consents”, within the meaning of subsection 273.1(1) of the Criminal Code, says the judgment of the assignee in the Supreme Court on Tuesday. And in this specific case, “the complainant testified that she mentioned several times to Mr. Kirkpatrick that her consent was conditional on the use of condoms,” we recall.

“Although he has clearly established where his physical boundaries are, the appellant ignored his wishes and did not wear a condom. These comments constitute proof of the complainant’s lack of subjective consent,” the decision continued.


Mr. Kirkpatrick was initially acquitted of attempted sexual assault, because the trial judge found there was no evidence that the complainant did not consent to the “sexual activity in question” nor that the accused was obviously unfaithful, which could have been which is another way. of conviction.

The British Columbia Court of Appeal disagreed and ordered a new trial, prompting Mr Kirkpatrick to appeal last year to the Supreme Court, which ultimately refused to acquit him.

“In our view, the foregoing provides at least some evidence that the Complainant will not consent [à une relation sexuelle] if Mr. Kirkpatrick had told her that he was not wearing a condom before penetrating her the second time, when he had clearly requested that she wear one,” the Supreme Court said. The consent of the complainant can be “Abandoned by fraud”, ruled the court.

“Therefore, a new trial must be conducted” to determine whether Mr. Kirkpatrick committed sexual assault against the complainant, the decision added.

The British Columbia Crown and intervenors, including the Attorneys General of Ontario and Alberta, urged the Supreme Court to recognize sex with a condom and unprotected sex as two separate activities, so that the law does not consider agreeing to one as consenting to another. .

With the Canadian Press

A previous version of this article incorrectly stated that the case was referred to the British Columbia Court of Appeal.

To see in the video

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