Supreme Court Rules Not Wearing A Condom Without Consent Could Be Sexual Assault

Canada's Supreme Court just reviewed a case involving a B.C. man who was initially acquitted of sexual assault after he didn't wear a condom during sex. The court has now ordered a new trial and said that if someone does not wear a condom during sex, without consent, it could be ruled as sexual assault.

This article contains content that may be upsetting to some of our readers.

In the 5-4 decision, the court ruled that using a condom can be a condition of consent and that if a partner ignores someone's stipulation to use a condom, "the sexual intercourse is non-consensual and their sexual autonomy and equal sexual agency have been violated."

In the case, a B.C. man named Ross McKenzie Kirkpatrick was charged with sexual assault after a woman said that she would only have sex with him if he wore a condom.

According to court documents, Kirkpatrick did use a condom the first time they had sex. The second time the pair had intercourse that night, however, Kirkpatrick failed to wear a condom. It was only after he ejaculated inside of her, that the woman realized he did not wear a condom.

According to the Supreme Court Judgements on July 29, "the complainant gave evidence that she had communicated to the appellant that her consent to sex was contingent on condom use. Despite the clear establishment of her physical boundaries, the appellant disregarded her wishes and did not wear a condom."

Although he was charged with sexual assault originally, the case went to trial and the judge dismissed it, finding that there was no evidence that the woman had not consented.

After that trial, the Crown appealed to B.C.'s Court of Appeal, which then ordered a new trial. The Court of Appeal found that the first judge shouldn't have dismissed the sexual assault charge, on the basis of a lack of evidence.

Kirkpatrick then appealed to the Supreme Court of Canada, where the case then went, in order to decide if "no, not without a condom" means "yes, even without a condom."

On Friday the Supreme Court dismissed the appeal, and Justice Sheilah L. Martin said that "since only yes means yes and no means no, it cannot be that ‘no, not without a condom’ means ‘yes, without a condom.’"

The Justices were split on the decision, not due to the consideration that failing to get consent not to wear a condom was sexual assault, but relating to the presented evidence.

In the Criminal Code Section 273.1(1), consent is defined as a person’s voluntary agreement to "engage in the sexual activity in question," not to engage in any sexual activity. The practice at hand, commonly known as "stealthing," is not considered consensual.

That means a new trial is needed in order to evaluate the case once again.

If you or someone you know has been the victim of sexual assault, call the Assaulted Women's Helpline at 1-866-863-0511. You can also contact support services for male survivors of sexual assault at 1-866-887-0015. If you need immediate assistance, please call 911 or go to your nearest hospital. Support is available.