Canada: Absence and withdrawal of condoms without consent becomes a crime

When a person is required by their partner to use a condom during sex, but they don’t or remove it during the act, they can be found guilty of sexual assault, the Supreme Court of Canada has ruled.

“Puisque seul oui veut dire oui et que non veut dire non, ‘non, pas sans condom (préservatif en anglais)’ ne peut vouloir dire ‘oui, sans condom'”, wrote the judge Sheilah L. Martin, in the rendue decision this Friday.

A case from 2017

The Supreme Court of Canada had been seized by Ross Kirkpatrick in November 2021. Accused of sexual assault on a 22-year-old girl in 2017, he had been acquitted for the first time. “Because the investigating judge concluded that there was no evidence that the complainant had not consented to the sexual activity in question,” says Radio-Canada.

But the British Columbia Court of Appeals disagreed and ordered a new trial, prompting Ross Kirkpatrick to appeal to the country’s highest court.

In the latter’s decision, we can read that the complainant had consented to have sex with Ross Kirkpatrick, but only if she used a condom. An agreement that was not respected during one of their relationships.

“In a state of shock and panic,” her partner told the young woman that she “could just have an abortion” if she got pregnant. While she feared she might have contracted a sexually transmitted infection, Ross Kirkpatrick responded that “people can now live with infections like HIV, chlamydia and gonorrhea.”

a sexual assault

“If the complainant’s partner neglects his condition, the sexual relationship is non-consensual and the complainant’s sexual autonomy and ability to act on equal sexes have been violated,” the Supreme Court ruled this Friday.

“Sex with and without a condom are fundamentally and qualitatively different forms of physical contact. A person who complains and consents to sex on the condition that their partner wears a condom is not consenting to sex without a condom,” insists Sheilah L. Martin.

The surprise extraction of the condom during sexual intercourse without the consent of the partner is a practice, called “stealthing”, which has caused concern for many years.