Removing Condom Without Partner’s Consent Is a ‘Sex Crime,’ Rules Canada’s Supreme Court
Yes means yes and no means no. But sometimes, yes means yes could transform into a no — perhaps when someone removes the condom without the other’s knowledge and consent. The transgression of trust, dignity, and boundaries during sex changes what one sexually consented to — consent, in other words, is an active process, but is often not seen this way.
This deceptive condom use is called “stealthing.” On Friday, Canada’s highest court of law opined that ignoring someone’s request to wear a condom can be legally considered a violation of one’s consent, and can be prosecuted as sexual assault. It rightfully problematizes the constricted idea of consent — both culturally and legally — shifting the focus away from it being binary to more layered and one that requires confirmation, and re-confirmation.
“A complainant who consents to sex on the condition that their partner wears a condom does not consent to sex without a condom,” Justice Sheilah Martin wrote in the decision. There is “no agreement to the physical act of intercourse without a condom.”
The ruling is significant in that it upholds people’s right to sexual autonomy, dignity, and boundaries. More importantly, it is a reminder that the legal infrastructure in and of itself is limited in the conversations it currently has on sex and sexual assault. The world over, laws are built on the restrictive understanding of consent found on “yes” and “no,” ignoring the cultural power dynamics that allow for abuse of boundaries, like deceptive condom use.
“Recognizing that condom use may form part of the sexual activity… is the only way to respect the need for a complainant’s affirmative and subjective consent to each and every sexual act, every time,” the court noted. How we define consent is a question that must be asked and answered multiple times, in multiple spheres: within families, societies, and courts of law. India is yet to criminalize deceptive condom use, and/or recognize that consent is not static or definitive.
The defendant’s lawyer, Phil Cote, an apparent critic of the decision, derided it by saying: “They’re going to have to think about now, what does this really mean in terms of the definition of sexual assault?” But what Cote seems to miss is how this precise disruption is needed to reorient the lexicon of legal frameworks.
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Underscoring the decision is the idea that sex with and without condoms are innately distinctive acts of physical touch. Yet, the two are conflated by virtue of a society that valorizes male entitlement, is misogynistic, and is crudely ignorant of the sexual health implications it may have. Even in the current case, the complainant met Ross McKenzie Kirkpatrick online and the two had sex twice in one night in 2017 — once with a condom and once without. The woman notes the lack of condom use the second time was without her knowledge, and had she known, she would not have consented to sex.
Some studies over the last decade reveal the extent of condom-use resistance, where women and men who have sex with men illustrated just how many times partners felt it admissible to remove condoms without consent. One of the authors, civil rights attorney Alexandra Brodsky, described stealthing as a “grave violation of dignity and autonomy” and a “disempowering, demeaning violation of a sexual agreement.”
In addition to mental trauma, stealthing also presents risks of unwanted pregnancies and sexually transmitted infections (STIs). “Men who had a history of nonconsensual condom removal were significantly more likely to have had a sexually transmitted infection diagnosis (29.5% vs. 15.1%),” according to a 2019 survey on stealthing.
The concern around unwanted pregnancies is further renewed with restrictive abortion laws and gaps in legal implementation across different countries. Removing consent without someone’s knowledge can lead to an unwanted pregnancy, viciously impacting the person’s life who is further denied access to abortion.
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The crisis of consent is one innately linked to patriarchy and sexism. “We give and take consent based on an outdated legal understanding, which in turn is based on an understanding that pits women’s minds against their bodies. Then we pretend that consent occurs between two equals all the time, allowing men to wield it however it suits them,” Rohitha Naraharisetty wrote in The Swaddle. Skewed power dynamics are also the foundation of the said legal system, and while judgments like these force stakeholders in the social and legal domains to think of sex as something active and living, there remain challenges.
In the present case, for instance, while the bench unanimously decided that sex-without-condoms should be prosecuted as sexual assault, it was split 5-4 on the reasons why. The argument besides consent was one of this being an instance of fraud and sabotage. The judges who argued for fraud violations vehemently disagreed with the idea that consent was violated; citing a previous judgment to argue condom use is not part of the legal definition of “sexual activity in question.”
“What will be interesting to see when Kirkpatrick gets tried again is how this inclusion of the deception under the sexual assault provisions instead of the fraud provisions ends up weighing out in terms of the decision of whether or not a sexual assault took place,” said Dawn Moore, professor of legal studies at Carleton University.
The fissures in ideological thinking again hint at the many symptoms that have taken a life of their own. As Saumya Saxena, a feminist legal historian, told The Swaddle: “We shouldn’t let the conversation be led by the law, [because] we are finding ourselves in a position that we need to constantly keep defining our experiences in legal terms. We shouldn’t have to make it legible to them.”