Canada’s Supreme Court has ruled that removing a condom during sexual intercourse without the explicit permission of a partner is a crime.
The unprecedented decision was made in a case that involved two people who interacted online in 2017, met in person to see if they were sexually compatible, and then met again to have sex.
The woman, whose name was not revealed, had predicated her agreement to sex on the use of a condom. During one of two sexual encounters however, the accused man didn’t wear a condom, unknown to the woman, who later took preventive HIV treatment.
The defendant, Ross McKenzie Kirkpatrick, was charged with sexual assault. However, the trial court judge dismissed the charge, accepting Kirkpatrick’s argument that the complainant had consented to the sexual relations, despite his failure to wear a condom.
The ruling was later overturned by the British Columbia Court of Appeal and ordered a new trial.
Kirkpatrick appealed that decision to the country’s top court, which heard arguments last November.
“Sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom,” states the ruling, which was approved by a 5-4 vote by the court. “Condom use cannot be irrelevant, secondary or incidental when the complainant has expressly conditioned her consent on it,” the court said.
Kirkpatrick’s lawyer stated that the new interpretation of the criminal code, which will be standard across the country, would drastically change the rules around sexual consent, making it almost like a binding contract that could be signed in advance.
The decision caused Ross McKenzie Kirkpatrick to go back to trial after he was charged for failing to wear a condom during sex with a woman he met online in 2017 despite agreeing to do so weeks in advance. Kirkpatrick’s lawyer told that this signals the importance of men continuing to check if their partner has given them active, engaged consent.
The practice, popularly known as “stealthing,” has become prevalent enough that some Canadian universities have incorporated it into their sexual violence prevention policies.
The report said that people have been convicted by courts of crimes for removing condoms during intercourse by the courts in Britain and Switzerland.