It’s 2022, We Should Know What Consent Is - Maria Garcia Manzano

Consent appears to be a complicated subject that all levels of courts still struggle to understand.[1] The meaning of consent entails the voluntary agreement to engage in any sexual activity. [2] However, the courts understanding of consent has been riddled with confusion since the damaging precedent established by the Supreme Court of Canada (SCC) in R v Hutchinson[3] where the majority ruling rejected the idea of ‘condom use’ as an integral component of consent.[4]Recently, in R v Kirkpatrick, the SCC had the ability to clarify and rectify previous damages done by theHutchinson ruling and held that the complainant had not consented to participate in non-condom sex.[5] However, it is troubling that the dissenting opinion disagreed with the majority’s assessment of consent and wanted to apply the precedent set by Hutchinson.[6] This blog seeks to comment on the dissenting ruling by criticizing the troubling Hutchinson framework the SCC Justices thought should be employed. First, the facts of the Kirkpatrick case and the majority and dissenting rulings will be outlined. Next, it will be argued that the dissenting ruling is mistakenly assessing consent by using the Hutchison framework. Next, it will be stated why the dissenting ruling is worrisome and departs from current ideals of consent. Finally, I will offer my thoughts on what the common law can do moving forward.

Facts

In Kirkpatrick, the appellant sought to dismiss the British Columbia Court of Appeal (BCCA) decision.[7]Moreover, the appellant wanted to reinstate his acquittal, which the trial judge granted under a no-evidence motion.[8] In the BCCA ruling the court held that Mr. Kirkpatrick (K) was guilty of sexual assault against the complainant but divided as to whether s. 273.1(1) or s. 265(3)(c) of the Criminal Code applied.[9] During the initial trial, the complainant testified that she and K met online, then in person, to determine if they wanted to have sex.[10] The complainant explicitly told Kthat she would only agree to have sex with him if he wore a condom.[11] He agreed with her terms, and they met at K’s apartment to have sex.[12] K wore a condom during the first episode of intercourse and, as per the complainant's request, did not ejaculate inside of her.[13] However, during their second episode, K did not wear a condom.[14] He also proceeded to ejaculate inside the complainant.[15] Throughout the second episode, the complainant believed K was wearing a condom.[16] She only realized he was not wearing a condom when he ejaculated inside of her.[17] The appellant argued that since the complainant had given consent and there was no evidence that he had obtained consent through fraud, the trial acquittal decision had to be reinstated.[18]

Ruling

In Kirkpatrick, the majority was formed by Justices Moldaver, Karakatsanis, Martin, Kasirer and Jamal. The dissent included Chief Justice Wagner and Justices Brown, Côté, and Rowe. The majority and dissent agreed on dismissing the appeal and ordering a new trial but differed in their interpretation of s. 273.1(1) and s. 265(3)(c) of the Criminal Code.[19] The majority stated that under s. 273.1 (1) the complainant had given no consent because consent had been conditional upon the appellant wearing a condom.[20] The dissenting judges strongly disagreed and stated that the complainant had given consent but that there was evidence that consent was vitiated through fraud per s. 265(3)(c).[21]Furthermore, the dissenting judges firmly stated that the court was bound to apply the Hutchinson framework because of its relevance and the inability of the majority judges to state why it should be overturned.[22]

The Problematic Legacy of R v Hutchinson

The Kirkpatrick dissenting judges chose to apply the framework used in Hutchinson because they believed it was relevant and applicable. They concluded that there was some evidence that the complainant had consented to the sexual activity. However, they believed there was evidence showing that fraud vitiated consent.[23]The Hutchinson framework is a two-step analysis of consent.[24] The framework was established in R v Hutchinson because the accused intentionally sabotaged condoms and used them to have sex with the complainant to cause physical harm by an unwanted pregnancy.[25] The first step determines whether consent to the sexual activity has been given.[26] Only three limited factors are considered; consenting to the touching, the sexual nature of the act, and knowing the identity of the person. If all factors apply, the complainant is taken to have given consent.[27] The second step is applied if it is argued that the consent was vitiated by fraud.[28] It is specifically applied when the deception creates a significant risk of bodily harm.[29] In the Hutchinson ruling, the majority judges stated that their decision stemmed from seeking to prevent overcriminalization of HIV nondisclosure.[30] Thus, the majority ruling in Hutchinson established that the sexual activity in question did not include the use of condoms because of the fear that if consent could be negated by non-condom use, it could also be negated by HIV nondisclosure.[31] However, by excluding condom use as a factor for consent, the SCC undermined the right of people, specifically women, as established in R v Ewanchuk, [32] to determine how they wanted to be touched and how the touching would take place. The dissenting opinion in Hutchinson knew that the majority was imposing a precedent that could damage interpretations of consent in future cases. [33]

When the dissenting opinion in Kirkpatrick chose to employ the limiting Hutchinson framework, they disregarded the complainant's explicit requests to the appellant when she reiterated multiple times that she would not have sex without a condom.[34] Using the Hutchinson framework, the dissenting judges used an umbrella approach to consent. They did not accurately assess the sexual activity in question as vaginal intercourse with a condom. They did not understand that nothing else, but condom sex was consented to by the complainant. Interpreting non-consensual condom removal (NCCR) as consented lets victims of sexual assault know that their wishes on how they wish to be touched are meaningless within the legal scope of consent. Furthermore, it is crucial to understand that using the limiting Hutchinson approach establishes that a conviction will only be obtained if a deception leads to a significant risk of bodily harm.[35] Therefore the approach not only limits the understanding of consent but also requires that individuals suffer a physical consequence, completely disregarding any psychological or emotional repercussions they may have had because of the violation they experienced to convict their abuser.

The Kirkpatrick Dissenting Ruling: Dated & Out of Touch

As a woman, I find it troubling that in 2022, NCCR practices are still not understood by all judges to be coercive sexual practices that negate consent. Especially if they were conditions upon which individuals agreed to engage in sexual activity. When the Kirkpatrick dissenting judges chose to apply the Hutchison framework, they showcased knowing and accepting a dated approach for assessing consent. The dissenting judges justified using the approach by stating that the approach taken by the majority was incorrect because they disregarded the binding precedent established by Hutchinson without giving reasons to disregard or overturn[36] They stated that the SCC has a duty under Stare Decisis to provide structure to the courts by assessing like with like.[37] They proceeded to offer circumstances where precedent can be overturned and stated that Hutchinson met none of the circumstances.[38] I believe that Hutchison should have been overturned because, the decision rationale has been eroded by significant societal or legal change.[39]

The shallow and narrow approach taken by the dissenting judges does not showcase opinions held by people today. A recent psychological study found that most participants viewed NCCR practices as wrong because they included a lack of consent and betrayal of trust; they considered it a form of sexual violence.[40] While this is one study, the researchers believe it may apply to the population at large.[41] Thus, a significant societal change may be approaching, and it is up to the courts to clarify and rectify previous wrongdoings. The Hutchinson ruling brought confusion and may deter future victims from coming forth with their allegations as they may not have sufficient evidence for fraud. By employing the Hutchinson framework, the dissenting opinion was letting future complainants of sexual assault know that there was yet another hurdle they had to overcome. As a society, we should make it easier for victims to come forward and report assaults to the police, as now only 6 out of 100 incidents are reported.[42] We must also ensure that the courts are well-equipped with the knowledge necessary to assess sexual assault claims properly. We have come far in our definitions of consent, and we cannot revert to implied consent, which is why ultimately, the majority’s judgment showcased something the dissenting opinion lacked. They tried to right the wrongs of Hutchinson and assess consent in a progressive way that aligns with today’s ideals.

Moving Forward: Officially Overturn Hutchinson

Consent should not be a difficult concept. We must collectively understand that only an affirmative yes to a sexual activity constitutes consent. Furthermore, how a person wishes to be touched must include whether they wish to have sex with or without a condom. In agreement with Justice Martin, I believe that when condom use is a condition of consent, not using a condom is an automatic violation. However, I believe Hutchinson needs official overturning to coincide with current objective perceptions of consent. I do not believe the dissenting judges have an informed understanding of consent as it applies in today’s actuality. I believe their interpretation of consent is dated and out of touch. No sex without a condom means NO SEX AT ALL WITHOUT ONE. It cannot be implied to mean otherwise, as we risk reverting to archaic consent interpretations.

[1] Gotell, Lise, and Isabel Grant. “Non‑Consensual Condom Removal in Canadian Law Before and After R. v. Hutchinson” (2020), 43 Dal LJ 767. [2] Criminal Code RSC 1985, c C-46, s 273.1. [3] R v Hutchinson 2014 SCC 19 [Hutchinson]. [4] Gotell & Grant supra note 1. [5] R v Kirkpatrick, 2022 SCC 33 [Kirkpatrick]. [6] Ibid. [7] Ibid. [8] Ibid. [9] Ibid. [10] Ibid at para 6. [11] Ibid. [12] Ibid at para 7. [13] Ibid at para 7. [14] Ibid at para 10. [15] Ibid. [16] Ibid at para 9. [17] Ibid at para 10. [18] Ibid at paras 15-18. [19] Ibid at para 111. [20] Ibid at para 102. [21] Ibid at paras 306-309. [22] Ibid at paras 114-116. [23] Ibid at para 306. [24] Hutchinson, supra note 3 [25] Ibid. [26] Ibid. [27] Ibid. [28] Ibid. [29] Ibid. [30] Ibid. [31] Ibid. [32] R. v Ewanchuk, [1999] 1 S.C.R. 330 [Ewanchuk] [33] Hutchinson, supra note 3. [34] Kirkpatrick, supra note 5. [35] Gotell & Grant, supra note 1. [36] Ibid at para 287. [37] Ibid at para 174. [38] Ibid at para 270. [39] Ibid at para 202. [40] Czechowski, Konrad, et al. “That’s not what was originally agreed to”: Perceptions, outcomes, and legal contextualization of non‑consensual condom removal in a Canadian sample, (2019) 14 PLoS ONE 7. [41] Ibid. [42] “Sexual Assault Statistics in Canada” (n.d), online: SexAssault.ca <https://www.sexassault.ca/statistics.htm>

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The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.