If a complainant's partner ignores the condition that a condom be used, the intercourse is non-consensual and the complainant's autonomy and equal sexual agency have been violated, Supreme Court rules
OTTAWA — The Supreme Court of Canada says sex with a condom is a fundamentally different physical act than sex without one, and that the use of a condom can be a condition of consent under sexual assault law.
The fact Kirkpatrick used a condom the first time they had sex led the complainant to assume that he was already wearing one when he initiated sex for a second time, she told the court — but he wasn't, which she said she did not realize until he ejaculated. The judge had relied on a 2014 Supreme Court decision, R. v. Hutchinson, which concerned the use of deliberately sabotaged condoms.
They said that instead, such cases should be decided using the second part of the test, which asks whether there has been dishonesty on the part of the accused, and whether the complainant has incurred significant risk of bodily harm. On that basis, they ordered a new trial. She said it would have avoided a situation where cases involving sabotaged condoms are now more difficult to prosecute than cases involving the refusal to use a condom.
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