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Removing Condom Without Consent Can Be Sexual Assault, Canada's Supreme Court Rules

"Sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom,” Justice Sheilah Martin wrote in the ruling.

author

Tom Hale

Senior Journalist

clockAug 1 2022, 15:55 UTC
red, blue, and yellow condoms in their plastic packaging.
One study by an Australian sexual health clinic in 2018 found that 32 percent of women and 19 percent of men who have sex with men had experienced stealthing. Image credit: Lemon Tree Images/Shutterstock.com

Canada’s Supreme Court has ruled that people who do not wear a condom during sex after their sexual partner requests them to do so could be guilty of sexual assault. In essence, they decided that the act of secretly removing or not using a condom, known as “stealthing”, can be considered a violation of consent and can lead to a conviction of sexual assault.

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The judgment by Canada’s Supreme Court, made on Friday, July 29, relates to a lengthy legal back-and-forth that’s lasted 5 years. 

In 2017, a female complainant (who remained anonymous for privacy reasons) consented to have sex with Ross Kirkpatrick on the condition that he wore a condom. Kirkpatrick wore a condom the first time they had sex but didn’t a second time, which she only realized after intercourse ended. As a result, Kirkpatrick was charged with sexual assault.

However, the trial court judge dismissed the charge, accepting Kirkpatrick’s argument that the pair had consented to the sexual relations. The ruling was then overturned by the British Columbia Court of Appeal, which ordered another trial, concluding that the first judge should not have dismissed the sexual assault charge based on a lack of evidence. Kirkpatrick then appealed to the Supreme Court of Canada.

In the latest development on Friday, the Supreme Court dismissed Kirkpatrick’s appeal with a 5-4 vote and has confirmed a new trial is needed.

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"Sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom,” Justice Sheilah Martin wrote in the ruling.

“Condom use, when it is a condition of the complainant’s consent, forms part of the ‘sexual activity in question’ under section 273.1 of the Criminal Code. This is the only interpretation that provides a harmonious reading of the text of the relevant provisions in their entire context and that accords with Parliament’s purpose of promoting personal autonomy and equal sexual agency,” she added. 

The decision by the Supreme Court has been praised by women’s rights groups in Canada.

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“This decision is an important statement that sexual partners must respect a decision to insist on condom use during sex,” Pam Hrick, Executive Director & General Counsel of the Women's Legal Education and Action Fund (LEAF), said in a statement. “This is foundational to the right to sexual autonomy and equality.” 

“The Court has recognized that failing to use a condom where one has been requested and required is not uncommon,” added Hrick. “This phenomenon, which includes the practice of ‘stealthing’, is particularly associated with intimate partner violence and disproportionately impacts marginalized communities, including sex workers.” 

One study by an Australian sexual health clinic in 2018 found that 32 percent of women and 19 percent of men who have sex with men reported having experienced stealthing. The survey found that sex workers were especially at risk.

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Legal systems in other parts of the world have made similar stands against stealthing. Last year, California signed in a law that allows victims of stealthing to take civil action, while the Australian Capital Territory also passed new laws that define stealthing as an act of sexual assault. People accused of “stealthing” have also been convicted in courts across Switzerland, Germany, and the UK.


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