Opinion Piece: Supreme Court decides on the definition of consent, part II: The Ruling.

Last year, I wrote an article about a case before the Supreme Court of Canada regarding the definition of sexual consent. The question was: is consent to protected sex separate from consent to unprotected sex?

On July 29, the court ruled, yes.

The case is called R v. Kirkpatrick. Ross Kirkpatrick was accused of sexual assault because he didn’t wear a condom when his partner asked him to. Removing or not putting a condom on behind a partner’s back is known as ‘stealthing’.

The incident happened in March 2017, when the complainant (Jane Doe) met Kirkpatrick on Tinder and decided to have a sexual relationship – with protection. She found out after he hadn’t put a condom on prior to intercourse and she called the police. He was found not guilty at trial, but his acquittal was set aside by the BC court of appeal. He appealed to the Supreme Court of Canada.

The Supreme Court has a precedent case to rely on- R v. Hutchinson, 2014. That case involved a sabotaged condom and an accidental pregnancy as a result. Hutchinson was convicted of fraud- that set precedent.

In R v Kirkpatrick, the Supreme Court dismissed Kirkpatrick’s appeal and ordered a new trial. The question at hand was ‘’whether the accused’s failure to wear a condom when the complainant’s consent conditional on its use results in there being no voluntary agreement of the complainant to engage in sexual activity in question — Alternatively, whether such failure can constitute fraud vitiating complainant’s consent.’’

The majority argued it was the former. The majority consisted of justices Martin, Moldaver, Karakatsanis, Kasierer and Jamal.

To quote their judgement: Condom use, when it is a condition of the complainant’s consent, forms part of the ‘sexual activity in question’ under s. 273.1 of the Criminal Code. This is the only interpretation that provides a harmonious reading of the text of the relevant provisions in their entire context and accords with Parliament’s purpose of promoting personal autonomy and equal sexual agency.

A 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

273.1 of the criminal code reads: Subject to subsection (2) and subsection 265(3), consent means, for sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.”

(1.1) Consent must be present at the time the sexual activity in question takes place.

So to translate: Jane Doe consented to protected sex. She did not consent to unprotected sex at the time it took place.

The other four justices disagreed and argued that the failure to use a condom would have constituted fraud. Justices Rowe, Wagner, Brown and Cote took this position. They argued that fraud was the only valid pathway to circumventing consent in this case: Jane Doe believed Kirkpatrick was using a condom; he was not. Therefore, it’s an act of fraud.

Regardless, Kirkpatrick’s appeal was dismissed, and a new trial will almost certainly be ordered. Nonetheless, the majority’s ruling has substantial implications for his own legal case- and for consent law going forward.

Here’s why: proving fraud could be more challenging for the Crown than proving that he’d committed a sex act distinguishable from what Jane Doe had consented to.

The 2014 Hutchinson case was easier for fraud: the defendant had sabotaged the condom beforehand.

Kirkpatrick, in this case, had not overtly deceived Jane Doe. He didn’t lie to her. He just said, ‘whoops, I forgot after the fact. She probably could have checked herself. A cross-examiner would bring that up.

The majority’s decision- that condom use was a part of the sexual activity in question- negates that. Now, at trial in this case and other cases, the crown must only prove that Kirkpatrick did not abide by Jane Doe’s specific consent. He can’t talk his way out of sexual assault charges with a ‘whoops, I forgot now.’

Conclusion.

Effective July 29, condom use is legally recognized as a part of sexual consent, as per the criminal code. Stealthing, of the type that Kirkpatrick committed, is now effectively recognized as sexual assault.

After I published my previous article on R v Kirkpatrick in January, a reader messaged me a comment. The reader suggested that this case should also open a conversation on the dangers of online dating and ‘hookup culture. Jane Doe met a man on the internet and began a sexual relationship with him. She trusted him to fulfil the conditions of her consent, and he violated them.

The consequences could have been a pregnancy or an STD infection. It took three years for a court to say that what had happened to her was sexual assault and another two for the Supreme Court to set that in stone. Now, she’s got another trial ahead of her before this is all over.

Kirkpatrick could have just as easily done this to a long-term girlfriend instead of a girl he’d met on the internet. But the reader opined that it’s an example of the risks of dating and hooking up with people you barely know: Kirkpatrick isn’t the only wolf out there.