Supreme Court justices are set to define “sexual activity” and decide whether sex with a condom is a type of sexual activity that is legally distinguishable from sex without sex. Ross McKenzie Kirkpatrick met the complainant online in 2017 (complainant’s name is protected by a publication ban). The two had sex twice in one night. The complainant said she insisted in advance that Kirkpatrick wear a condom. Kirkpatrick wore a condom the first time they had sex, but not the second time. The complainant testified that she thought Kirkpatrick had taken another condom when she briefly turned on the nightstand. The complainant testified that she had not consented to intercourse without a condom. Police charged Kirkpatrick with sexual assault, but a BC judge acquitted him. The judge said there was no evidence the complainant had not consented and there was no evidence Kirkpatrick had acted fraudulently. In 2020, the British Columbia Court of Appeal unanimously ordered a new trial — but the judges gave different reasons for their decisions. Two of the judges said that intercourse with a condom is legally different from intercourse without one, and that the complainant had not consented to the latter. A third judge said Kirkpatrick deceived the complainant by not telling her he was not wearing a condom. Kirkpatrick appealed to the Supreme Court, arguing that the appeals court’s decision should be thrown out.
Judges to refer to 2014 decision
At the November 2021 hearing before the Supreme Court, both sides of the Kirkpatrick case cited a 2014 Supreme Court decision — R. v. Hutchinson. In that case, a woman agreed to have sex with Craig Jarrett Hutchinson but, unbeknownst to her, Hutchinson poked holes in the condom she used. The woman became pregnant. Supreme Court justices upheld Hutchinson’s conviction. The majority wrote that the condom sabotage constituted fraud and that the woman’s consent was invalidated by that deception. However, the majority said in its ruling that the term “sexual activity in question” refers to intercourse itself — and does not specify whether a condom is used. The Supreme Court of Canada in Ottawa on Thursday, June 17, 2021. The court will issue a ruling on condom use that one observer says could clarify a legal gray area. (Justin Tang/The Canadian Press) The court said it feared that expanding the definition of sexual activity to include condom use could “result in the criminalization of acts that should not attract the heavy hand of the criminal law” – such as using expired condoms or a particular brand of condom. Non-consensual removal of condoms during sex is often referred to as “stealing”. Lise Gotell, a professor in the University of Alberta’s gender and women’s studies department, said it’s important to understand the difference between the Hutchinson and Kirkpatrick cases. “[Kirkpatrick] it is a case of condom refusal. It’s not cheating,” Gotell told CBC News. He said the court’s decision could bring clarity to a legal gray area. “The law is currently quite uncertain in Canada, especially when it comes to situations where the condom is not removed fraudulently, where there is simply a refusal to wear a condom,” Gotell said. The court is expected to issue its decision at 9:45 am. EDT.
