The BC Court of Appeal recently determined that the presence or absence of a condom can be a major factor in determining whether consent to sex is legally valid. In the case of R. v. Kirkpatrick, the accused person and the complainant had lengthy discussions about condom use before they ever had sex.
The complainant was clear that she would only have sex with the accused if he used a condom. They met up and had consensual sex, with a condom, then fell asleep. Later that night, they woke up and had sex again. The complainant believed that the accused was wearing a condom until he ejaculated inside her and she realized that he was not.
The complainant filed a police report and the accused was charged with, and tried for, sexual assault. He was acquitted after his counsel argued that the prosecutor had not proven lack of consent. The prosecutor then appealed. The Court of Appeal had to decide two questions: whether the use of a condom was an integral aspect of the sexual activity consented to, such that sex without a condom was non-consensual, and whether the failure to wear a condom after extensive discussion and agreement about its use amounted to fraud. In Canadian law, consent obtained by fraud is invalid.
The Court of Appeal sided with the prosecutor and sent the matter back for a new trial. Two of the sitting judges reasoned that the use of a condom is so essential to the sexual activity that the complainant had agreed to that she could not have been said to consent to sex without one, even though she had agreed to have sex with the accused both times. One of the judges did not agree with that analysis, but nonetheless found that the accused had obtained her consent by fraud by leading her to believe that they would only be having sex with a condom, and then choosing not to wear one for the second round of sex.
This case is yet another example of how nuanced and fact-specific the question of consent actually is. The analysis is usually more complex than whether there was a “yes” or “no” to sex. For anyone charged with sexual assault, it is important to hire a lawyer who understands the nuances and complexities of the law regarding sexual consent in Canada.