The Supreme Court of Canada says sex with a condom is a different physical act than sex without one.
In a 5-4 decision Friday, the top court ruled that 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.
In applying the existing two-part test to determine whether consent has been violated in sexual assault cases, the judge found that there was no evidence the complainant had not consented to “the sexual activity in question,” the intercourse itself, nor was there evidence the defendant was explicitly deceitful, which would have undermined consent.
Hutchinson was charged with aggravated sexual assault, but a trial judge dismissed the charge and the case went up the appeals chain. The attorneys general of Alberta and Ontario joined with advocacy groups in arguing that point as interveners at the Supreme Court, emphasizing that the effects of refusing to wear a condom versus wearing a sabotaged condom are the same.“We’re very, very happy on the outcome of the decision,” said Lise Gotell, a scholar on sexual consent at the University of Alberta and a former board chair for the Women’s Legal Education and Action Fund.
Instead, Martin writes that the Hutchinson decision was limited to its specific factual context and would still apply in cases where a complainant finds out after a sexual act that the accused was wearing a knowingly sabotaged condom.
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