Unheeded Unprotected Sex Consequences

"When a complainant states: 'no, not without a condom' our law of consent says, emphatically, this actually means 'no' and cannot be reinterpreted to become yes, without a condom'."

"Sex with and without a condom are fundamentally and qualitatively distinct forms of physical touching."

"A complainant who consents to sex on the condition that their partner wear a condom does not consent to sex without a condom."

"[When condom use is a condition for sexual intercourse], there is no agreement to the physical act of intercourse without a condom."

"Since only yes means yes and no means no, it cannot be that 'no, not without a condom' means 'yes, without a condom'."

Justice Sheilah Martin, majority decision, Supreme Court of Canada 5-4 ruling

The Supreme Court of Canada ruled Friday that sex without a condom is a type of sexual activity legally distinct from sex with a condom. (Jonathan Dupaul/CBC News)

"We're very, very happy on the outcome of the decision. We think that condom sabotage is a form of non-consensual condom removal that should be treated the same way."

"From a feminist perspective, this is a really important and great decision."

"What this does is it creates clarity, and also is a decision that really respects women's autonomy and dignity, and that is incredibly important."

"Internationally, it's a really significant decision. In no other place now is the law, the criminal law, as clear on this question that condom use is part of what you're agreeing to when you agree to sex."
Lise Gotell, scholar on sexual consent, University of Alberta

The Supreme Court of Canada in Ottawa. Court justices unanimously ordered a new trial in the case of a B.C. man who did not wear a condom during sex despite being asked to, but they were split on their reasons. (Justin Tang/The Canadian Press)

It is now law in Canada. Another long-overdue level of protection for women engaging in sex who seek to protect themselves from an unwanted pregnancy when they inform a sex partner of their wish to be protected from pregnancy. Ignore that request and should a woman seek to press charges, the court will find that the kind of sex engaged in, sans, condom, is a sexual assault. 

Consequently a new trial has been ordered in a British Columbia case where a complainant informed a sexual partner that sex was conditional on his agreeing to wear a condom. Russ McKenzie Kirkpatrick agreed to the condition and intercourse followed. When sex was initiated for a second time the woman assumed that her preference for sex conditional on condom use had been accepted and there was no need for a re-statement.

She realized after the fact that the second act of intercourse was consummated without a condom, despite her express wishes. What followed was a sexual assault charge but the judge hearing the case decided insufficient evidence was presented for the trial to proceed. The judge found no evidence available that the complainant had failed to consent to "the sexual activity in question", nor was evidence that the defendant had been explicitly deceitful presented to undermine consent.

The complainant explained that hers was a reasonable assumption; that the fact Kirkpatrick agreed to her condition of condom-use and had worn one the first time, led her to the belief he would do so again, but he had not. A B.C. Court of Appeal subsequently found that the trial judge had erred in his finding of no evidence. And the Supreme Cort unanimously agreed with that finding.

A 2014 Supreme Court decision, R. v Hutchinson, concerning the use of deliberately sabotaged condoms was what the original judge had relied on for his decision respecting evidence. The accused in that case, Craig Hutchinson, had sabotaged condoms he used with his girlfriend who wanted no children, but he did. In that case, the complainant became pregnant, and decided to end the pregnancy. Hutchinson was charged with aggravated sexual assault. The charge was dismissed by a trial judge leaving the case to the appeals chain.

In that Hutchinson case a majority of Supreme Court Justices concluded consent to the "sexual activity in question" would not include "conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases". Instead, such cases should be decided on the basis of whether there was dishonesty on the part of the accused, and whether the complainant incurred significant risk of bodily harm. Which led to a new trial.

"Section 273.1(1) of the Criminal Code defines consent as a person’s voluntary agreement to “engage in the sexual activity in question”. At trial, the complainant testified that she had not consented to the sexual activity in question — in this case, intercourse without a condom. When the Crown finished presenting its case, Mr. Kirkpatrick asked the judge to dismiss the charge against him due to lack of evidence. He claimed the Crown did not prove the absence of consent, because the complainant consented to the sexual intercourse, regardless of condom use."

"Writing for a majority of the judges of the Supreme Court, Justice Sheilah L. Martin said that when condom use is a condition for sexual intercourse, “there is no agreement to the physical act of intercourse without a condom”. The condom is part of the “sexual activity in question” to which a person consented under section 273.1(1) of the Criminal Code. “Since only yes means yes and no means no, it cannot be that ‘no, not without a condom’ means ‘yes, without a condom’”, Justice Martin wrote. "

Supreme Court of Canada

The Supreme Court of Canada ruled Friday that sex without a condom is a type of sexual activity that is legally distinct from sex with a condom.  Photo: Reuters / Bazuki Muhammad