SCC ruling provides clarity about sexual assault and condoms
I am not surprised the Supreme Court of Canada (SCC) ruled in June that people who don't wear condoms during sex after their sexual partners told them to can be convicted of sexual assault. In Ontario, to the best of my knowledge, that was the way this situation was handled even before this judgement.
As a news report states, the top court ruled that “stealthing” – the act of pretending to use a condom, or removing one prior to sex without the partner's consent – can violate the legal grounds for consensual sex."Sex with and without a condom are fundamentally and qualitatively distinct forms of physical touching," Justice Sheilah Martin wrote in the majority decision.
"A complainant who consents to sex on the condition that their partner wear a condom does not consent to sex without a condom."
The SCC ordered a new sexual assault trial in the case of a B.C. man who did not wear a condom during sexual intercourse with a woman even though she insisted beforehand that he wear one.
According to the judgment, the couple had sex twice in one night, He wore a condom the first time. The second time he didn’t, which the complainant didn’t realize until he ejaculated inside her.
Court documents state that the man argued that he never tried to deceive the woman. During the second time he asked her “if this felt better than the last time. She agreed, believing that he was referring to the different position … [she] but realized afterwards it meant the lack of a condom.”
Police charged the man with sexual assault but a B.C. judge acquitted him, saying there was no evidence the complainant had not consented and no evidence that he had acted fraudulently. The British Columbia Court of Appeal unanimously ordered a new trial, and the man appealed to the Supreme Court, which denied that appeal.
As a defence counsel in Ontario, if consent for sex is based on the use of a condom that is not used, the accused should be found guilty, especially if a man takes off the condom during intercourse.
I tried a case involving a couple who were in a relationship. She agreed to penetrative sex, but on the condition that my client wear a condom. They had intercourse for five seconds when she repeated that he must wear a condom. He put one on and they continued.
After, she complained to police about this lapse, and other issues related to their sexual interactions. He was charged with sexual assault for failing to put on a condom right from the start.
The court acquitted my client on that charge because the court had reasonable doubt about the incident taking place.
In the SCC case cited above, the court was unanimous in its decision. As Justice Martin wrote, when condom use is a condition for sexual intercourse, "there is no agreement to the physical act of intercourse without a condom … this approach respects the provisions of the Criminal Code, this Court’s consistent jurisprudence on consent and sexual assault and Parliament’s intent to protect the sexual autonomy and human dignity of all persons in Canada.”
The judgement adds, “Since only yes means yes and no means no, it cannot be that ‘no, not without a condom’ means ‘yes, without a condom.’ If a complainant’s partner ignores their stipulation, the sexual intercourse is non-consensual and their sexual autonomy and equal sexual agency have been violated.”
This ruling reinforces Ontario courts' direction on this issue and perhaps provides clarity for other provincial courts.