July 29, 2022 – Today’s Supreme Court of Canada decision makes clear the need to respect a person’s decision to engage in sexual activity only with a condom, says the Women’s Legal Education and Action Fund (LEAF).
In its decision in R. v. Kirkpatrick, a majority of the Supreme Court clarified that when a person consents to sex on the condition that their partner wear a condom, but the partner does not comply, the sexual activity in question is not consensual and constitutes sexual assault. LEAF intervened in this case to argue that this approach to consent in the context of condom use promotes substantive equality for equity-deserving groups, including women, girls, trans, and non-binary individuals.
“This decision is an important statement that sexual partners must respect a decision to insist on condom use during sex,” says Pam Hrick, LEAF’s Executive Director & General Counsel. “This is foundational to the right to sexual autonomy and equality.”
The majority of the Supreme Court recognized that sex with a condom is a “fundamentally and qualitatively different physical act” than sex without a condom. It made clear that when someone says “no, not without a condom”, Canada’s consent law says this actually means “no” and cannot be reinterpreted as “yes, without a condom.” This means that when a survivor comes forward with a report of non-consensual condom refusal or removal, there is no need to additionally prove that the accused deceived the survivor.
LEAF is also pleased that the majority recognized non-consensual condom refusal and removal as a form of sexual violence that disproportionately impacts women and gender-diverse people. The Court cited LEAF’s submission that “[t]his is even more true for racialized members of these communities.” Power dynamics in relationships can impact the ability of members of marginalized communities to assert condom use during sexual activity.
“The Court has recognized that failing to use a condom where one has been requested and required is not uncommon,” says Hrick. “This phenomenon, which includes the practice of ‘stealthing’, is particularly associated with intimate partner violence and disproportionately impacts marginalized communities, including sex workers.”
As LEAF welcomes today’s decision, it will also continue its advocacy to end harmful myths and stereotypes about sexual violence survivors – including victim blaming – so that survivors can feel secure and supported in coming forward with their accounts.
Frances Mahon and Kirat Khosa represented LEAF as an intervener before the Supreme Court in this case, with the assistance of Elsa Kaka.
LEAF is grateful to the members of the case committee that guided, informed, and supported this intervention: Andrea Krüsi (Centre for Gender and Sexual Health Equity), Joshua Sealy-Harrington (Lincoln Alexander School of Law), and Adriel Weaver (Goldblatt Partners).
Executive Director & General Counsel