Alexander Khaliapin | Nov 12th, 2021
As of November 9, 2021, the Supreme Court of Canada is still reviewing a case that will impact how we legally define ‘stealthing’ and other acts which violate one's consent regarding sexual intercourse. For those that are unaware, ‘stealthing’ is the act of consenting to the use of protection during sex, but removing such protection without informing one’s partner. In the current case before the Supreme Court, Ross Kirkpatrick of British Columbia had conducted stealthing with his sexual partner. The other party had agreed to sex on the condition that Kirkpatrick wears a condom, and while he complied in their initial encounter, the pair had a second encounter later in the same night, in which Kirkpatrick did not wear a condom. What the Supreme Court must now decide is how to go about ruling such an act. While it is generally agreed upon that such an act should be and would be considered illegal under section 271 of the Criminal Code of Canada, the main question is how the law would persecute someone who committed such an act (1). When it comes to stealthing, does the prosecution need to establish fraud before it could be considered sexual assault?
Currently, under a precedent set in 2014 involving a man who poked a hole in his condom without his partner knowing, the Supreme Court established that such an act would go against the consent of one’s partner and be considered sexual assault and fraud(2). However, in order for it to be considered sexual assault, the prosecution would first need to establish fraud; that is, deceit that causes harm, or a risk of harm. Currently, the Supreme Court is deliberating on whether or not needing to establish fraud should be necessary in order to charge someone with sexual assault for sabotaging or removing protection, and whether they should change a precedent that has only existed for seven years.
Chief Justice Wagner has expressed his view that it is unreasonable to throw out said precedent due to the fact that it has only existed for 7 years (3). Justice Rowe has shared similar views and adds that to remove the requirement to establish fraud, then that would risk criminalizing situations that should not be criminalized, namely accidents. For example, if a condom breaks, Justice Wagner and Rowe believe that removing the requirement to establish fraud could put someone at risk of being charged sexual assault in such a situation (4).
Meanwhile, Justice Jamal disagrees, stating that such a risk is unlikely since it is clear that the physical act of sabotage would still remain at the heart of the law even without the requirement to establish fraud. Justice Maldover (who had dissented with the 2014 decision) shares a similar view, stating that an important goal for the Supreme Court has always been to protect the autonomy and dignity of complainants. In essence, there is a concern that the requirement to establish fraud would make it more difficult to prove whether or not someone had violated the conditions to consent. Furthermore, the B.C Court of Appeal has stated that if the 2014 precedent remains untouched and taken at face value, it would be dysfunctional in its protection of sexual autonomy. This sentiment has been echoed by prosecutors from Alberta, B.C, and Ontario, along with three women’s rights groups (5).
While the Supreme Court is still deciding whether or not to keep this requirement, it is clear that this is an important moment in Canadian law regarding the autonomy and sexual rights of Canadians.
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