Claude Chamberland, lawyer
In a 187-page decision handed down this summer (R. v. Kirkpatrick), the Supreme Court of Canada clarified the state of Canadian criminal law on the issue of stealthing — the removal of the condom without the partner during sexual intercourse — by specifying how this practice invalidates the consent to the sexual act given conditionally on the wearing of a condom.
In the sense of the majority, « Hutchinson does not govern a case such as this where consent is based on the use of a condom and no condom was used, and therefore there is reason to make a distinction. Hutchinson simply held that cases involving condom sabotage and deception should be analyzed under the fraud provision, rather than including condom use as part of the sexual activity in question. to art. 273.1 (…) If the complainant realizes during the sexual act that the condom has been sabotaged, then she can revoke her subjective consent, the actus reus of the sexual assault is established, and there is no need to proceed to fraud analysis. »
In other words, the use of a condom, when it is a condition of the complainant’s consent, is an integral part of the sexual activity covered by s. 273.1 of the Criminal Code. Contrary to what the accused claimed, the Crown does not have to prove a « fraud » vitiating the consent given, as previously required by the case law. It is sufficient for the prosecution to demonstrate that the victim had made his consent subject to the express condition of wearing a condom for the stealth exercised by the accused to result in a criminal conviction of sexual assault.
A problem raised by some social scientists is that this phenomenon (which almost one in four people would have experienced one day) would be trivialized. Remember that the victims suffer from significant psychological sequelae such as the fear of an ITTS, the fear of an unwanted pregnancy and the feeling of having been betrayed. Waiting for the results of screening tests in the health network is also a major stress and waste of time that exacerbates these sequelae and prolongs them. Even with the police or judicial authorities whose job it is to enforce the Criminal Code, the victims report several difficulties often encountered throughout the processing of their complaint. They sometimes feel these difficulties as a trivialization of the trauma they have suffered.
As for sex workers who force their clients to wear condoms, they are often told yes … until the client changes his mind and commits this stealthing sexual assault. The health and safety of these workers will now be better protected as the clientele understands the very heavy scope of this Court ruling.
In general and in all contexts of sexual intercourse, partners must henceforth from the beginning to the end take into account and respect all conditions accompanying the consent given to a sexual act. This was already the case of course, but the proof required to obtain a conviction for a violation of this consent is now greatly facilitated by the clarifications provided by the majority judges in the Kirkpatrick case.