Consent: How the Growing Issue of Stealthing Needs to be Addressed - Jamie Robertson

Case and Relevant Criminal Code Section Discussion

The case of R v Kirkpatrick (“Kirkpatrick”) concerns an issue that is important to address and define: consent. What exactly does consent entail? Is it just the physical act between two people as found in R v Hutchinson at the Supreme Court of Canada, or is it more than that?[1] Can you consent to sexual relations with someone but only with conditions such as using a condom? This is precisely the issue the courts are faced with in the case of Kirkpatrick.

In this case, a woman consented to sexual relations with Kirkpatrick. She stated that she made it clear that a condom was required, and one was used in their first sexual encounter. However, during a subsequent sexual encounter with Kirkpatrick, a condom was not worn; the woman was unaware of this fact.[2] The courts are now facing the issue of whether this breaches the consent that was given and how to reconcile this with the analysis given in the similar case of R v Hutchinson (“Hutchinson”).

Section 265(3) of the Criminal Code states that no consent is obtained where the complainant submits or does not resist by reason of:

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority[3]

The relevance here to the case at hand is fraud. In Hutchinson, the courts found that fraud occurred where a defective condom was knowingly used by the accused, and, because of this, the consent given was not valid.[4] Thus, in Hutchinson, it was not found that the defective use of a condom resulted in non-consensual relations, but rather, it was found that because fraud occurred, the consent became invalid. However, it is important to note that the dissent discussed that when a condom is stated as a condition of the sexual relations, to not wear one or to sabotage one would mean no consent and, thus, fraud would not be necessary to demonstrate.[5] In the case of Kirkpatrick, the British Columbia Court of Appeal found that sex with a condom is a different act than sex without a condom.[6] This court found a distinction between Hutchinson, where the condom was made purposely defective, and the case at hand, where a condition of the consent was broken by not using a condom. This has been appealed to the Supreme Court of Canada. Currently, quotes from Justice Rowe include comparing him hiding his wedding ring and having an extramarital affair to the deceitful act of removing or lying about wearing a condom with a partner who requests you to do so.[7] As a woman reading this comparison, I find this to be a total disregard for the violation occurring in the case. When an individual is deceitful about wearing a condom during sexual relations, they are exposing their partner to a wide range of health issues and psychological trauma. The Supreme Court of Canada has yet to come to a decision on the Kirkpatrick case.

Relevance

This case appears to be just one of many concerning a crime referred to as “stealthing.” According to Trent University, “Stealthing is the non-consensual act of removing a condom during sex.”[8] The Kirkpatrick case, currently at the Supreme Court of Canada, will be important in the issue of consent and knowing what you are consenting to; for example, knowing that if you consent to sexual relations on the condition that a condom be worn, whether not wearing a condom is a breach of consent or not. The Supreme Court of Canada must clarify this issue. Further, this is an important issue in health. Stealthing can result in pregnancy, the transmission of sexually transmitted infections, and psychological trauma for the victims involved. According to a Canadian study on stealthing, “in a 2019 online survey of 592 Canadian undergraduate students, 18.7 percent reported that they had experienced the non-consensual removal of a condom during sex.”[9] This demonstrates that stealthing is a relevant problem in our society today, and it is an issue that the courts need to give guidance on. Additionally, online communities have been found that provide others with tricks on how to stealth, such as how to remove a condom during the act of intercourse.[10] This is incredibly disturbing to learn about and further demonstrates the need for clarification on this issue, along with legislation to mark the act of stealthing as an act of sexual assault.

Interestingly, in a handful of other jurisdictions, the act of non-consensual removal of a condom or purposeful improper use of a condom is against the law. For example, in the Australian Capital Territory, their Crimes Act lists that removing a condom during sex or to not use one at all when consent was based upon wearing a condom is against the law.[11] It states that consent is negated “by an intentional misrepresentation by the other person about the use of a condom.”[12] Another example is in New Zealand in the case of R v Campos (“Campos”), where the accused was convicted of rape for non-consensually removing a condom during sexual intercourse.[13] These are interesting to discuss, as they demonstrate that other jurisdictions are taking a stance on this issue. Both the Australian amendment and the New Zealand case occurred in 2021, demonstrating the relevance of this issue. I believe the Supreme Court of Canada should look to the Campos case, as it represents a stunning similarity to the Kirkpatrick case and could perhaps stand as persuasive precedence for the conviction of individuals partaking in stealthing.

Commentary

The act of stealthing is very disturbing because of how increasingly common it appears to be becoming and how many possible health implications can result from the act. It also presents a difficult task for those impacted to report something that may or may not be taken seriously. It is essential that the courts give our society more guidance on this and clearly make stealthing a form of sexual assault. While I can acknowledge the concern that, by making stealthing a form of sexual assault, a broken condom may be grounds for sexual assault, I do not believe this will be the case; the mens rea element of a crime would likely not be met in court for this.[14]Mens rea is the guilty mind component of a criminal act.[15] In the case of stealthing as seen in Kirkpatrick, the accused knowingly did not wear a condom and proceeded to have sexual relations knowing that the victim would not have agreed to this.[16] This is different from realizing later in a sexual act that a condom is broken. The former is intentional and displays an accused’s disregard for their sexual partner’s health and well-being. In contrast, the latter is an accident that is clearly stated on condom packages to be a risk involved with using.

The future implications of not having clearer case law and legislation for these practices includes ongoing issues for victims in receiving adequate help with what to do after the occurrence of stealthing, as well as psychological trauma. Considering the fact that other jurisdictions have been able to take action on this issue, I am hopeful the Supreme Court of Canada will dismiss the appeal and affirm the decision of the British Columbia Court of Appeal. It would be beneficial to have this affirmed and have new precedence established in favour of the view that sexual intercourse without a condom is a different act requiring different consent than sexual relations with a condom. Affirming a decision like this will also allow victims of stealthing to receive help within the justice system and have more clarification about what has occurred to them. The issue of consent is clearly one requiring more clarification from the courts and legislators, and I am hopeful that in the future, we will receive said clarification so the issue of stealthing can firmly be regarded as sexual assault.

[1] R v Hutchinson, 2014 SCC 19, [2014] 1 SCR 346 at para 53. [2] R v Kirkpatrick, 2020 BCCA 136 at paras 5-10. [3] Criminal Code, RSC 1985, c C-46, s 265 (2). [4] Hutchinson, supra note 1 at para 2. [5] Ibid. [6] Kirkpatrick, supra note 2 at para 17. [7] Sean Fine, “Supreme Court appears divided on the issue of ‘stealthing’ and consent” (3 November 2021), online: The Globe and Mail <www.theglobeandmail.com/canada/article-supreme-court-appears-divided-on-the-issue-of-stealthing-and-consent/> [perma.cc/PB7W-Q2PX]. [8] “Sexual Violence: Stealthing”, online: Trent University <www.trentu.ca/sexualviolence/resources/stealthing> [perma.cc/Y4C3-S8LE]. [9] Konrad Czechowski, “That’s not what was originally agreed to: Perceptions, outcomes, and legal contextualization of non-consensual condom removal in a Canadian sample” (10 July 2019), online: Plos One <journals.plos.org/plosone/article?id=10.1371/journal.pone.0219297> [perma.cc/PW8A-EEEP]. [10] Alexandra Brodsky, “Rape-Adjacent: Imagining Legal Responses to Non-consensual Condom Removal” (2 November 2017), online (pdf): Social Science Research Network <poseidon01.ssrn.com/delivery.php?ID=752123112086067120111064000094064023006042023048070022113016028098094066101123091089054030034103008038096118018080097118084111126071075054031103121066005029016021090085079018085003005007107068084121107090029027064112123070025011030123120121013002111065&EXT=pdf> [perma.cc/G2E9-V3KN]. [11] Crimes Act (ACT), 1900, s 67(1)(h). [12] Ibid. [13] R v Campos, [2021] NZDC 7422 at paras 2-12. [14] Catherine Tunney, “Top court reviewing case involving condom use and consent” (3 November 2021), online: CBC <www.cbc.ca/news/politics/supreme-court-condom-kirkpatrick-1.6232850> [perma.cc/HZ3A-TM2Y]. [15] Simon N Verdun-Jones, Criminal Law in Canada: Cases, Questions, and the Code, 7th ed (Toronto, ON: Nelson Education Ltd, 2020) at 21. [16] Kirkpatrick, supra note 2 at paras 5-10.