Does No Condom Mean No Consent?

Does No Condom Mean No Consent?

With the release of the decision in R. v. Kirkpatrick, the Supreme Court of Canada has provided further clarification on the issue of consent and condom-use. 

In the decision, the Court rules that sex with a condom is a fundamentally different act than sex without a condom, and that the use of a condom can be a condition of consent to sexual activity. 

The facts in Kirkpatrick were as follows: the complainant consented to having sex with Kirkpatrick, who was a new sexual partner to her.  However, she insisted that a condom be used.  Kirkpatrick wore a condom the first time that they had sex.  However, on the second occasion that they did so, he did not.  The complainant said that she did not realize that he had not used a condom until after the act was complete.

This case was similar, but different, to another case called R. v. Hutchinson.  There, the accused confessed to deliberately sabotaging condoms in a purposeful attempt to get his girlfriend pregnant against her wishes.  The complainant in that case had also insisted on condom use as a method of birth control.  Due to Hutchinson’s deceit, however, she became pregnant and had to undergo an abortion.

The Court drew a legal distinction between these two scenarios: namely condom sabotage and the refusal to wear a condom when asked. 

While the latter may be considered to vitiate consent, allowing for a more straightforward prosecution under existing sexual assault laws, the former is considered a form of fraud, which involves an arguably more ponderous legal test.

Some have criticized this aspect of the decision, saying that the Court has effectively created an elevated bar for prosecution in cases of condom sabotage, versus non-use. They say that it is an unnecessary and artificial distinction, which will lead to confusion, inconsistency and complication.

It is important, however, to consider that the Court has not condoned either of these behaviours. It has done quite the opposite. The Court has strongly declared that both tampering with a condom and not using a condom when asked to amount to criminal activity. The path to conviction is just different.

And it may be that the Court had very good reason for making this seemingly odd distinction.

The failure to use a condom altogether may be factually less cumbersome to prove than tampering with or altering a prophylactic. The very act of non-compliance itself seems to demonstrate a total disregard for the other parties’ conditions of consent.

Consider this in contrast to a scenario where a condom becomes accidentally punctured or torn, or where it is unintentionally removed during intercourse. In these situations, it might be appropriate to proceed by way of fraud, which requires, amongst other things, the Crown to show proof of deceit in order to garner a conviction.

This could provide an important procedural protection for those who find themselves in unfortunate and unwitting situations, rather than those who put themselves there deliberately as a result of their own willful actions.

On this point, the Court is very clear: not using a condom when asked to do so is enough to nullify consent and amounts to sexual assault.

This is consistent with common, legal and academic notions of sexual assault; in that it is not so much about sex, as power. By recognizing condom refusal as a form of sexual violence, the Kirkpatrick decision recognizes its disproportionate impact on women, gender-diverse and racialized communities.

Further to this, the Court also relied heavily on personal autonomy and the importance of empowered decision making around decisions involving sexual health and well-being. It emphasized that non-consensual condom refusal can have very serious consequences for victims, including unplanned pregnancy and the transmission of STI’s.

In this way, it seems to gesture at the importance of reproductive rights and autonomy in Canadian society.

This stands in stark contrast to the SCOTUS’s decision on abortion access, which was released just a few short weeks ago. At least under the purview of the court, it bodes well for our continued access to comprehensive reproductive care.

All in all, the Kirkpatrick decision is unsurprising. It embodies Canadian values while simultaneously providing clarity and consistency with respect to well-established principles of law on consent and sexual assault.

As the Court so aptly put it, when someone says “no, not without a condom,” it does not mean “yes, without a condom.”

It means “no.”