The law of sexual assault and consent continues to evolve. In a recent case, R v Kirkpatrick, from the British Columbia Court of Appeal, two of three appeal court judges held that someone can limit their consent to sexual intercourse with a condition that their partner wear a condom. This contradicts an earlier decision by the Supreme Court of Canada (“SCC”), R v Hutchinson, which stated that measures to prevent disease or pregnancy, such as effective condom use, do not change the nature of a sexual act agreed to under s. 273.1 of the Criminal Code.

By going against the higher authority of the SCC (called “precedent” in law), the BC Court of Appeal judgment will likely be further appealed to the Supreme Court. If it does, the Supreme Court will either maintain its earlier position from Hutchinson, or else they will abandon their earlier position, effectively creating new law for all Canadians.

In Kirkpatrick’s case, the complainant had consented to sexual activity with Mr. Kirkpatrick, but claimed her consent was subject to him wearing protection. They had intercourse on two occasions, the second of which, unbeknownst to the complainant, Mr. Kirkpatrick did not wear a condom. He was then charged with sexual assault.

At trial, the Crown argued that the activity went beyond what was consented to, or, in the alternative, that consent was vitiated by fraud. After the Crown finished their argument, defence counsel for Mr. Kirkpatrick made a “no evidence” motion to have the case dismissed because the Hutchinson case defeated the Crown’s first argument, and there was also no evidence that Mr. Kirkpatrick had deceived the complainant (i.e., no evidence of fraud). The motion was successful, and Mr. Kirkpatrick was acquitted. The Crown then appealed the acquittal.
In Canada, a panel of three judges hear appeals. In the Kirkpatrick appeal, two of the judges (hence “the majority”) found that ignoring the condition to wear a condom ought to attract criminal liability, and ordered a new trial. The third judge disagreed (the “dissenting” judge) and took the position that the trial judge had not erred in law by acquitting Mr. Kirkpatrick.

Justice Groberman, for the majority, was scathing in his critique of Hutchinson, writing, at paragraph 3 of the judgment, that “the trial judge’s interpretation of Hutchinson would leave the law of Canada seriously out of touch with reality, and dysfunctional in terms of its protection of sexual autonomy.”

That consent can be vitiated because of fraud is already the law. But the difference between whether consent existed and was vitiated by fraud, versus never given in the first place, is at the heart of the Kirkpatrick case, and is a clear example of how difficult it can sometimes be to apply the law to the facts of each case.

In the earlier Hutchison case, the complainant told the accused she only consented to sexual intercourse with protection. The accused wore a condom but poked holes in it, and so the complainant became pregnant. The majority of the SCC found that consent had been given but vitiated by the accused’s deception. As stated above, they also held that “conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases,” would not go towards the analysis of consent, only the analysis of whether consent had been vitiated by fraud. But a minority of the SCC felt that “conditions or qualities of the act” counted under the analysis of consent. As the accused poked holes in the condom, the sexual activity was not “safe” sex, the only type of sex the complainant consented to, hence no consent. However, equating a sabotaged condom with no condom use at all ran the risk of attracting criminal liability any time a condom was defective.

In the Kirkpatrick case, the facts are slightly different, and less black and white. The complainant’s evidence was that when she and Mr. Kirkpatrick first engaged in sexual intercourse, he reached over to his bedside table, grabbed a condom, put it on, and they had intercourse. Later in the night, Mr. Kirkpatrick was aroused again. He moved toward the complainant, who pushed him away. She then saw the accused reach into the same drawer as before, and assumed he was putting on a condom. 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. Within a minute of the commencement of the second incident of intercourse, Mr. Kirkpatrick asked her if it felt better this way. She didn’t understand that he meant “does it feel better without a condom”, and said yes. Also, he’d asked her to guide his penis into her vagina at one point, which strongly suggests that he was not hiding the fact that he was not wearing a condom. After Mr. Kirkpatrick ejaculated into her vagina, the complainant confronted him, and he told her he had been “too excited to wear a condom.”

The BC Court of Appeal ultimately found that the trial judge had correctly ruled there was no evidence of fraud relating to condom use. However, because the complainant’s evidence was that Mr. Kirkpatrick knew her consent was conditional to the use of condoms, the BC Court of Appeal found the trial judge had erred by dismissing the Crown’s case for no evidence and sent the matter back to trial. The trajectory of this case will be an important one to follow.

For now, if you or someone you know has been charged with sexual assault, please contact the team at DeMelo Law.