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Sex is complicated. Sex can get even more complicated when you’re not honest with a sexual partner. If you were dishonest, you may be at risk of a charge for sexual assault, even if you believe your partner was an active participant at the time.

Section 273.1(1) of the Criminal Code defines consent as the voluntary agreement of the complainant to engage in the sexual activity in question. This means that there is no blanket consent. Each person needs to consent to each specific sexual activity.

If you are being accused of sexual assault or are facing a sexual assault charge, contact a sexual offence lawyer in Calgary as soon as possible and stop all communication with your accusor as it can be used against you in court. A Calgary criminal lawyer will help you navigate this situation and ensure your rights are protected.

What is Vitiated Consent?

Section 265(3) of the Criminal Code includes circumstances where consent is vitiated or revoked, including in situations involving fraud and deceit. As a result, even if the person consented at the time, you can still be charged with sexual assault if they were enticed to consent by fraud or misrepresentation.

This provision is rooted in the idea that people have a right to know what they’re signing up for. Although all sexual activity may carry some risk, if there are additional risks, the complainant should have the information to make an informed decision.

This issue was first addressed in R v Cuerrier (1998), SCR 371. The accused, Mr. Cuerrier, had unprotected sex with two different women, without disclosing his HIV status. The Supreme Court found that the effects of HIV could cause significant bodily harm. As a result, failing to disclose his HIV status vitiated the complainant’s consent.

In a subsequent decision by the Supreme Court in R v Mabior (2012), 2 SCR 584, the Court clarified to vitiate consent, there must be a realistic possibility of transmission. Therefore, concerning HIV transmission, whether consent was vitiated will depend on circumstances including whether the sex was protected and the person’s viral load. Although a lot of the law surrounding transmission and sexual assault relates to HIV, it’s likely that these principles will also apply to other sexually transmitted diseases.

Lying about fertility or birth control can lead to a sexual assault charge

Lying about fertility or forms of birth control can also result in a finding of sexual assault. In R v Hutchinson, 2014 SCC 19 a Nova Scotian man was found guilty of sexual assault after deceiving his girlfriend. The couple had agreed to use condoms. However, the accused secretly poked holes in the condoms, hoping to get his girlfriend pregnant. The woman became pregnant and incurred complications as a result of the pregnancy.

The Supreme Court found that, although the complainant had agreed to have sex with the accused, she had only agreed to sex with a condom. The complainant would not have consented to sexual activity with an ineffective condom, and the accused concealed this fact from her. The accused’s deception vitiated the consent as his deception put the complainant at risk of serious bodily harm. The accused was found guilty of sexual assault.

Kirkpatrick: Vitiated Consent or No Consent at All?

The circumstances under which consent can be vitiated are not always clear. The Supreme Court of Canada will soon assess whether failing to wear a condom can vitiate consent as R v Kirkpatrick, 2020 BCCA 136 has been given leave to appeal. Kirkpatrick and the complainant met online and had two face-to-face meetings. Before any sexual activity, the complainant told the accused that she required him to wear a condom during intercourse. The complainant also asked to see the condom after sex to ensure that it had been worn the entire time.

On the second night, the complainant stayed over after sex. During the night, the pair had sex again, this time without a condom. The complainant alleged that she was not aware that the accused had not been wearing a condom until after he ejaculated. The trial judge found that there was nothing dishonest about Mr. Kirkpatrick’s actions because he did not hide or deceive the complainant into thinking that he had put on a condom.

The Court of Appeal found that failing to use a condom can also amount to sexual assault. However, the Court was not consistent in how they arrived at this conclusion. Justice Groberman and Justice Saunders agreed that although there was not enough evidence to establish fraud, sex with and without a condom were distinct acts and the complainant had only consented to sex with a condom. As a result, they held that the sex was non-consensual. Justice Bennett, however, found that the complainant had consented, but that evidence of fraud had vitiated the consent.

How to protect yourself against potential sexual assault charges

The Supreme Court has not yet weighed in on whether failing to wear a condom amounts to sexual assault. However, the case law suggests that an upfront approach is best. To avoid the risk of being charged with sexual assault, partners should be direct about their sexual health and the conditions they agree to.

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