Written by

Alexander Romancia-Bishay


Supreme Court decides on the definition of sexual consent

Published On: Wed, Jan 12th, 2022, 9:15AMLast Updated: Thu, Jan 13th, 2022, 8:19PM6.2 min read
By Published On: Wed, Jan 12th, 2022, 9:15AMLast Updated: Thu, Jan 13th, 2022, 8:19PM6.2 min read

The Supreme Court will make a decision that will clarify the definition of sexual consent.

If you consent to protected sex, and your partner removes the condom/fails to put it on behind your back, does this turn your otherwise consensual sexual encounter into sexual assault? This is the question being asked of the Supreme Court.

There are five elements to sexual consent: Free, Reversible, Informed, Enthusiastic, Specific (F.R.I.E.S.). The particular case before the Supreme Court concerns whether the consent given was informed and specific. 

From Tinder to the Supreme Court.

The story began at an online dating site in March 2017. The defendant, Ross Kirkpatrick, met the complainant ( referred to as Emily Doe) online, and eventually, they met face to face. They discussed sexual practices, where she insisted on the use of condoms, and he agreed, that it would be safest ‘for all concerned’.

Emily Doe went to Kirkpatrick’s house, and he brought a condom. They had sex twice, the first time was protected, the second time wasn’t. Emily Doe did not consent to unprotected sex the second time, she didn’t even know until it was too late. The BC court of appeal decision says, ”she had not consented to intercourse without a condom, and her evidence is that she would not have done so if asked…. Although the complainant believed that he was getting a condom, he was not doing so. She did not hear him open a condom package or see him put on a condom, nor did he do or say anything to make her think that he had put one on. The two then engaged in sexual intercourse.’’

She confronted him afterwards and he gave the excuse that he was ‘too excited’ to wear a condom.

He was arrested for sexual assault but acquitted in his 2018 trial. The Crown appealed. The BC Court of Appeal ordered a new trial. It’s now up to the Supreme Court of Canada and was argued on November 3rd.

To quote the Crown’s Brief in the case, ‘”The Crown is asking the justices to decide whether “no, not without a condom” means “yes, even without a condom.” The case on appeal presents this court with an opportunity to answer these questions and to clarify the law of consent.

The crux of the argument is that while the sexual encounter was technically consensual, Doe’s consent was nullified by Kirkpatrick’s behavior. On the flip side is the argument that Kirkpatrick hadn’t overtly deceived Doe, and therefore the sex remained consensual.

Consent is understood as the voluntary agreement of the complainant to engage in the sexual activity in question. Conduct short of a voluntary agreement to engage in sexual activity does not constitute consent as a matter of law.

The crux of the case is that she gave ‘conditional consent’, therefore when the condition was not met, the consent was not given.
So the question is, is it not common sense that if you and your partner explicitly agree to only protected sex in advance, a ‘miscommunication’ in bed doesn’t negate that?

In fact, the practice of removing a condom behind a partner’s back is common enough to have it’s own slang term- Stealthing.

The Legal matter

The Supreme Court has to decide whether Kirkpatrick committed sexual assault.

Both the Crown and the defence are citing a previous Supreme Court case- R. v Hutchinson, 2014. The Supreme Court unanimously convicted Hutchinson of Sexual Assault, but was split on the reason- and that split is what is in question for this case.

The Hutchinson case originated from a similar case in Nova Scotia. Hutchinson actually did use a condom, but he sabotaged it with a needle behind Jane Doe’s back, and she ended up pregnant.
The court agreed that her consent was nullified by Hutchinson’s actions. The minority ruled that he was guilty simply because Jane Doe’s consent was contingent on the use of a working condom and therefore, the use of a condom should be a legal contingency for consensual sex. But the Majority declined to read in condom use as part of the meaning of ‘sexual activity in question’. They were concerned would make the definition of sexual activity ‘too broad’, and capture situations involving accidents- like a condom breaking. However, the specific violation of consent here led to measurable harm for Jane Doe- an unwanted pregnancy.

Dr. Geoffrey D. Callaghan, an assistant professor at the University’s Department of Political Science, has a research background in Constitutional Law and Judicial Process. He agreed to be interviewed to help explain the law at hand in this case.

First, the Supreme Court isn’t going to have the final word on the Kirkpatrick case. Their job isn’t to acquit or convict Kirkpatrick, but to set the legal parameters for his case if he is eventually retried back in British Columbia. The way they rule may provide new grounds for conviction on sexual assault that hadn’t existed before.

Dr. Callaghan explains that the Supreme Court has developed a 2 stage test to determine consent.
Stage 1 is Voluntary agreement to the sexual activity in question.
Stage 2 is relevant to any circumstances that undermine or eliminate the presence of legal consent- such as Fraud.

The question is where does the use of a condom fall?

The SCC minority in Hutchinson argued that it should be in stage one, that protected sex is a separate sexual activity from unprotected sex. Emily Doe voluntarily agreed to protected sex, and not unprotected sex, therefore she did not consent and Kirkpatrick is guilty of sexual assault. The Hutchinson majority argued instead that the consent was violated in stage two, and the fraud was in the sabotaged condom.

If the Supreme Court goes with the Hutchinson majority decision, then the question turns to if fraud or deception took place. And here, the evidence against Kirkpatrick is weaker than Hutchinson. Hutchinson used a sabotaged condom, that’s overt deception. Kirkpatrick didn’t use one at all, and he never said he was using one. Legally, passive deception is much murkier than overt deception, this is why he was acquitted in the first place.

A legal organization called the Women’s Legal Education and Action Fund, (LEAF) intervened in the case and provided their own arguments before the Supreme Court. They argued in favor of condom use being applied for stage one.

First, they argued it was a matter of dignity and autonomy being violated. Secondly, they wanted to show that Kirkpatrick’s actions- and similar actions of others- pose significant risks that Emily Doe never consented to. She could have ended up pregnant, or with an STI, (in fact, she was tested for STIs after the assault).

So now it comes to the Supreme Court to further define the legal definition of consent. If they stick to Hutchinson, the status quo will remain, in which use/lack of use of a condom in itself is not sufficient to make up a distinct sexual activity. If they go the other way, stealthers beware: ignoring your partner’s request to wear a condom now legally qualifies as sexual assault.

We will provide an update, once the Supreme Court rules.

You can view more information about the case here: 







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About Alexander Romancia-Bishay