The Supreme Court of Canada has decided that it is illegal to remove a condom during sexual activity without a partner’s express consent.
The ruling was made in a case involving two individuals who had online interactions in 2017, met in person to see whether they were sexually compatible, and then met to have sex, according to a source. The woman, whose identity was protected by a publication prohibition, had made the use of a condom a condition of her consent to sex. The accused male didn’t use a condom during one of the two sex acts they had at that gathering; the woman afterwards had preventative H.I.V. treatment.
Ross McKenzie Kirkpatrick, the defendant, was accused of sexual assault. The trial court judge, however, rejected the accusation and agreed with Kirkpatrick’s defence that the complainant had given his consent to the sex even though he had not used a condom. The decision, which was announced on Friday and was accepted by the court on a 5-4 vote, notes that “sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom.”
Court’s Decision
The court ruled that where the complainant explicitly made the use of a condom a condition of her agreement, it could not be irrelevant, secondary, or incidental. According to Kirkpatrick’s attorney, the country’s new standard interpretation of the penal code will fundamentally alter the laws governing sexual consent, treating it almost like a legally enforceable contract that can be signed in advance.
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