People who don’t wear condoms during sex after their sexual partner tells 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, popularly known as “stealthing,” violated the legal basis of consensual sex.
Judge Sheilah Martin said in a majority ruling Friday that if the use of a condom is a condition of intercourse, “there is no consent to physical intercourse without a condom.”
The condom becomes part of the “sexual activity in question” and the partner’s desires 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,'” wrote Ms. Martin.
The ruling follows a five-year-old case in which a British Columbia man was accused by her partner of not using a condom despite her request. The woman later underwent preventative HIV treatment.
On Friday, the court ordered Ross McKenzie Kirkpatrick back on trial on alleged sexual assault charges in the case.
The applicant, whose name has not been released to protect her identity, said she met Mr Kirkpatrick in 2017. According to her statement, 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 the court in 2018 that it was the first time they had sex with a condom. But she didn’t know that the second time around, Mr. Kirkpatrick didn’t wear a condom because the room was dark.
She testified that she thought Mr. Kirkpatrick had been given another condom when he turned to the bedside table and only realized he wasn’t wearing a condom after he was done.
Mr Kirkpatrick’s lawyer, Phil Cote, said his client never tried to deceive the woman and made it clear during the act that he was not wearing a condom. Mr Kirkpatrick claimed he asked her “does this feel better than last time”, referring to the non-use of condoms. But the woman said she thought he was referring to the position.
Police charged Mr Kirkpatrick with sexual assault but were acquitted in 2018 after a trial judge cited a lack of evidence.
The British Columbia Court of Appeals subsequently ordered a new trial in 2020, but Mr Kirkpatrick appealed to the Supreme Court of Canada.
With 5:4 votes in the Supreme Court, the court has now ordered a new trial.
Judge Martin said, “Sex with and without a condom are fundamentally and qualitatively different forms of physical touch.”
“A complainant who consents to sex on condition that his partner wears a condom does not consent to sex without a condom.”
Mr Kirkpatrick’s lawyer said this will drastically change rules on sexual consent across the country.
“In Canada, approval is always in the moment. But what that decision does is creates far from the moment of sexual activity — in this case, days or even a week before the sexual encounter,” he said.
“If you can derive a moral from this for everyone, but especially for men, you have to be sure that there is active and committed consent. And if you’re not sure, you should ask,” he added. “Unfortunately, that’s not how sexual encounters work.”
However, the decision was welcomed by lawyers and advocates.
“What will be interesting to see when Kirkpatrick is brought back to trial is how this inclusion of deception in the sexual assault provisions rather than the fraud provisions ultimately weighs in in relation to the determination of whether or not sexual assault has occurred ‘ he told Dawn Moore, a law professor at Carleton University.
He said it could be beneficial for prosecutors if they could bring up both fraud and sexual assault, but proving what happened in private remains a challenge.
The UK has strict laws on stealthing and considers it rape. Britain and Switzerland have convicted people of crimes related to removing condoms during sex.
In the US, the state of California passed legislation in 2021 making stealthing illegal. The change in law allows victims to sue their offenders in court, but has not changed the penal code.