What is sexual assault?
Sexual assault is listed under section 271 of the Canadian Criminal Code. In a broad sense, it is considered an assault that violates the sexual integrity of the complainant. Numerous factors are considered for determining if the act was of a sexual nature. These elements are judged on an objective basis. This means that the factors are not analyzed based on a specific individual’s viewpoint. Furthermore, these circumstances are not subject to a specific person’s conceptions. These factors include the environment the incident occurred, the area of the body, any statements or gestures made, nature of the contact and surrounding circumstances of the act.
Can I be convicted of sexual assault if I lied about wearing a condom?
Members of society often view sexual assault as a sexual act that occurs against a non-consenting party. However, due to the recent ruling in the Canadian Supreme Court in R. v. Kirkpatrick, 2022 SCC 33 this viewpoint may change. If you do not wear a condom during sexual activity with an individual that only consented to the sexual activity with this condition, you may be convicted of sexual assault.
What was the implication of the recent court decision in the case Kirkpatrick?
The critical point to recognize in the case R. v. Kirkpatrick, 2022 SCC 33, is that the Supreme Court ruling did not convict the accused of sexual assault. Instead, the Court dismissed the accused’s appeal, upheld the decision by the Court of Appeal in British Columbia which revoked the acquittal and ordered a new trial. This decision does not speak to whether the accused is guilty or not guilty of sexual assault. Instead, the Supreme Court ordered a new trial based on the evidence that if condom use was a condition of the complainant’s consent to the sexual activity being analyzed, this evidence must be considered within the “sexual activity in question” and the consent analysis under section 273.1 of the Canadian Criminal Code.
Does the law consider the act of poking holes in a condom the same as lying about wearing one?
No. The Court and Canadian law makers view the physical act of poking holes in a condom differently than lying about condom usage. The act of altering the state of a condom, and consequently its effectiveness, has been described as an act of deception and fraud. This was determined in the Supreme Court case R. v. Hutchinson, 2014 SCC 19.
Why does the court place such importance on the use of a condom between two partners consenting to sexual activity?
The Supreme Court of Canada ruling has made it clear that sexual activity with and without a condom are separate types of acts. An individual’s consent to one type of activity does not imply their consent to another type. Within the court’s decision in R. v. Kirkpatrick, 2022 SCC 33 it is stated that non-consensual condom removal or refusal is a type of sexual violence as it damages the complainant’s bodily autonomy, equality, and human dignity. Refusing to wear a condom or secretly removing a condom during sex are viewed as the same offence. This is due to the potential physical risks of intercourse without a condom such as pregnancy or STI transmission, as well as psychological consequences.
What now?
If you are being investigated or charged with a sexual assault contact Roulston Urquhart Criminal Defence so we can immediately start defending you. We will tell you exactly what steps you need to take to start protecting yourself. See the video on our website What To Do If You Are Charged With Sexual Assault.
