On July 29, 2022 the Supreme Court of Canada (SCC) released the Kirkpatrick decision. In a split concurring decision, the majority concluded that when condom use is a condition to engage in sex, a person who does not wear the condom may be guilty of sexual assault. In this blog post, I argue that Kirkpatrick is a welcome decision because the SCC chose to include condom use as a condition for consent and, in doing so, the Court took a clear stance in favor of protecting sexual autonomy.
R v Kirkpatrick: The Background Story
The complainant, whose name is unknown due to publication ban, and the appellant, Ross Mackenzie Kirkpatrick, met online in 2017. During their first meet-up, they discussed their sexual boundaries and the complainant made it clear that she would only agree to have sex with a condom. A few days later, Kirkpatrick picked her up and took her back to his place. In the moments leading to their first instance of sexual intercourse, the complainant reminded him again that she will only have sex with a condom. She watched him put on the condom and after they concluded, she asked to see the discarded condom, making it clear that condom use was important to her.
Later that same evening, the complainant and Kirkpatrick engage in sexual activity again. Prior to vaginal penetration, Kirkpatrick turned toward the same nightstand where he had retrieved a condom during the first instance of sexual intercourse. Because of this, the complainant assumed he had put on a condom. He did not. It was not until he ejaculated inside of her that she realized he had not worn a condom.
When the complainant expressed fear about the repercussions she could face because of his refusal to wear a condom, Kirkpatrick seemed unbothered. He said she could “just get an abortion” and that these days people can live with STIs like HIV, gonorrhea, and chlamydia. Still upset the next day, she texted him about the situation and asked him why he refused to wear a condom, even though she specifically requested it. He replied that he was “too excited” and sent her links to pornographic content to mock the situation.
The complainant took the matter to the police and the case went before the justice system. At the trial, Kirkpatrick was found not guilty of sexual assault. However, on appeal, the British Columbia Court of Appeal found that the trial judge incorrectly interpreted the applicable legal standards. Consequently, the appeal (to review Kirkpatrick’s acquittal) was allowed and so a retrial was ordered.
The case was then appealed to the Supreme Court of Canada, and the Court ultimately concluded that not wearing a condom despite that being a condition to consent may lead to a finding of sexual assault. Under section 265(1) of the Criminal Code, assault, including sexual assault, occurs when a person applies force intentionally to another person without their consent. In their decision, the majority note that “a complainant who consents to sex on the condition that their partner wear a condom does not consent to sex without a condom”. Therefore, to have sex without a condom when the complainant premised their consent on condom use is to have sex in the absence of her consent, thereby resulting in an act of sexual assault.
A Welcome Decision
This is a welcome decision for my reasons. First, the majority’s decision is an important defence of sexual autonomy. Sexual autonomy refers to the idea that a person has a right to decide when, how, and with whom they will engage in sexual activities. Part of exercising sexual autonomy is deciding whether to use contraception, the method of contraception they want to use, and the pregnancy or STI risks they are willing to take while engaging in sexual activity. By ruling that not wearing a condom during intercourse, despite it being a condition of consent, may be sexual assault, the Court reinforced the idea that an individual has, in law, the right to limit their consent to specific sexual acts. In effect, this case adds another layer of protection to the idea that “yes” to a sexual act does not mean yes to any sexual act, and therefore protects an individual’s sexual autonomy.
Furthermore, in upholding sexual autonomy, the Court rejects the assumption that women are passive participants in sex. For example, the Court notes how younger women engaging in casual sexual relationships “with partners they do not know well” are more likely to be targets of non-consensual condom removal. By recognizing the heightened risks for young women who are having casual sex, the Court acknowledges that women in 2022 are having casual sex and that the casual nature of the relationship is irrelevant in assessing the existence of consent. In fact, by explicitly mentioning how this population is likely to be target, the Court is clear that women engaging in casual sex require protection by the law. Considering the prevalence of online dating and casual sex in Canadian society, this is an important acknowledgement by the Supreme Court that ensures Canadian jurisprudence is in touch with our social reality.
Next, in rejecting the application of the fraud analysis, the Court maintains the victim at the centre of the analysis and simplifies the legal analysis. In a prior decision, Hutchinson, the Court set out a two-step test for analyzing consent: 1) Did the complainant consent to the sexual activity in question? 2) If yes, are there circumstances, such as fraud, that vitiate their consent? The Hutchinson majority found that the victim had consented to the sexual activity in question, but that her consent was broken by fraud; her partner knowingly wore a defective condom which later led to pregnancy. In Kirkpatrick, the majority state that Hutchinson applies to cases where a condom has been sabotaged but not to cases like Kirkpatrick where consent was premised on condom use. Essentially, the Kirkpatrick majority reasoned that, in this case, since her consent was premised on condom use, and a condom was not worn, there was no consent. Even though both cases have similar issues, condom use, there is no consent in this case and so a fraud analysis would be unnecessary and inappropriate.
This is important because under a fraud analysis the complainant must prove that there was a deception and a deprivation, namely, serious bodily harm. As such, a fraud analysis shifts the focus from the complainant's consent to the accused’s behavior and whether the accused attempted to deceive the complainant. Not only are deception and deprivation hard to prove, but they would also require what the majority call “a patronizing” inquiry on whether the harm was serious enough to be “deprivation” despite the fact that the complainant may, in her eyes, not have consented at all. Avoiding this inquiry promotes focusing the analysis on the complainant’s consent which, again, promotes sexual agency and the unassailable importance of consent.
Lastly, this is a welcome decision because it explicitly recognizes how non-consensual condom removal is a gendered crime that disproportionately affects women and marginalized populations. For example, in paragraph 61 of the decision the majority state “The power dynamic [non-consensual condom removal] rests on is exacerbated among vulnerable women, including women living in poverty, racialized women, migrant women, and among people with diverse gender identities and sex workers”. The majority also comment on sexual violence in general, saying that it “disproportionately impacts women and gender diverse people, including trans and cisgender women and girls and other trans, non-binary, and Two Spirit people. This is even more true for racialized members of those communities”. The acknowledgement that both non-consensual condom removal and sexual violence is experienced differently across gender, race, class, and other lines signals that the majority understands the real-world context in which sexual violence occurs. More importantly, it reinforces, in jurisprudence, a rejection of the ”ideal victim”, the idea that some people are seen as more legitimate victims (or survivors) than others. By acknowledging that certain populations of society are more impacted by sexual violence, the Court implicitly signals that these folks’ experience with sexual violence is just as valid as what is commonly conceived as the “traditional” target of sexual violence.
Implications from the Kirkpatrick Decision
So what are the implications of this decision? First, as this was a Supreme Court of Canada decision, this decision is now a binding authority. According to the principle of vertical stare decisis, lower courts such as trial courts are bound to follow the principles established in the decisions of the apex court, the Supreme Court. As such, in future cases involving the non-consensual removal of a condom, trial judges must follow the principles enunciated in Kirkpatrick, specifically assessing whether condom use was a requirement for consent. Should a trial judge fail to follow this jurisprudence appropriately, the Crown prosecution may seek to appeal the case to a Court of Appeal. In any case, the fact that trial judges will now have to consider whether condom use was a requisite factor to the complainant’s consent will add another layer of protection to individuals who find themselves in a similar situation as the Kirkpatrick complainant. And again, the individuals and complainants who will be most protected will be women and other marginalized populations.
Conversely, because the majority distinguished Kirkpatrick from Hutchinson, the jurisprudence around fraud remains intact. Specifically, they differentiated between Kirkpatrick and Hutchinson on the basis that Hutchinson dealt with condom sabotage and not non-consensual condom removal. This is important because the Cuerrier and Mabior cases, both of which concerned the vitiation of consent through fraud, established an important framework for identifying and understanding sexual assault. These two cases found that when a person with HIV knowingly withholds their status from a partner who may not have consented to intercourse with them had they known about their status, that person may be found guilty of sexual assault because the consent was vitiated through fraud. Thankfully, the Kirkpatrick case left this jurisprudence undisturbed by refusing to engage in a fraud analysis. Otherwise, the Court may have unsettled the carefully outlined legal tests found in case law on fraud and HIV status which could have had negative consequences for parties involved in proceedings similar to the Cuerrier and Mabior cases.
Lastly, an important implication of the Kirkpatrick case is that it highlights the need for people engaging in sexual activities to have clear communication about their boundaries and conditions of consent, especially when it comes to condom use. As the Court notes, non-consensual condom removal is “not uncommon”, therefore people, especially women, engaging in casual sex with non-well-known partners should be crystal clear about their condom-use boundaries and whether it is a condition of consent. It may be a good idea to have these conversations in writing, such as through text message, so that there is a record of this exchange of information.
Conclusion
While the fate of Ross Mackenzie Kirkpatrick is uncertain until his retrial, the principles enunciated by the majority of the Supreme Court of Canada are clear: if condom use is a condition of consent, then removing or refusing to wear a condom during sexual intercourse can be understood as sexual assault.
This is a welcome decision because it reinforces, in law, the importance of sexual autonomy and the idea that condom use may be a defining element of consent. The decision is also welcome because the opinions of the majority specifically acknowledge how non-consensual condom removal and sexual violence is experienced differently across age, gender, class and racial lines. The Kirkpatrick judgment will have expansive implications, especially for trial judges who must now follow the Kirkpatrick reasoning in future cases of non-consensual condom removal. Moving forward, individuals engaging in casual sexual activities should clearly state their sexual boundaries, especially if their consent is conditioned on condom use.
