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Canada SC: Removing Condom Without Taking Consent of Partner Amounts to ‘Sex Crime’

2 min read

Aastha Thakur

Published on August 01, 2022 at 18:05 IST

The Canada Supreme Court recently held that removing a condom during sexual intercourse without taking the explicit permission of a partner is classified as a crime.

The victim woman had during the consensual intimate act had asked the accused to use protection during the act. However, the man didn’t wear the condom, unknown to woman, who later got to know when she took preventive HIV treatment.  

The accused man Ross McKenzie Kirkpatrick, was initially charged with sexual assault which was later dismissed by the trial court that despite his failure to use a condom the sexual act.

This ruling was later on overturned by the British Columbia Court of Appeal, and directed for fresh trial.

The defendant went for appealed against this order before the Canada Supreme Court. The Court upheld the decision of lower court and the ruling was approved by a 5-4 vote by the Court.

The Court ruled that, “Sexual intercourse without a condom is fundamentally and qualitatively different physical act than sexual intercourse with a condom.”

It was further added that, “Condom use cannot be irrelevant, secondary or incidental when the complainant has expressly conditioned her consent on it.”

The defendant’s lawyer stated that this new interpretation of the criminal code, which will be standard across the country, would drastically change rules around sexual consent and make it similar to a binding contract that must be signed in advance.

It has been found that there is an increase in condom-use resistance. The practice, popularly known as “stealthing” which has become so prevalent that some Canadian universities have also incorporated it into their sexual violence prevention policies.