R v Kirkpatrick 2022 SCC 33 case analysis: consent to sexual activity and condom use by Alanah Josey

Alanah Josey

Associate Lawyer - Presse Mason Barristers and Solicitors

August 3, 2022

The majority opinion in R v Kirkpatrick 2022 SCC 33 addressed the state of the law on consent and condom use. The majority distinguished the decision in R v Hutchinson 2014 SCC 19 and held that vaginal intercourse with a condom constitutes the “specific physical sex act” for the purposes of assessing voluntary agreement to sexual activity under s 273.1(1) of the Criminal Code (“Code). As a result, where intercourse is contingent upon condom use, the lack of contraception is not assessed as a condition vitiating consent under s 265(3)(c). This gave rise to a very strong dissenting opinion.

In Kirkpatrick, the accused met the complainant online, and they subsequently met in person to have sex. The complainant made clear that she would only have sex with the accused if he wore a condom. The accused reached into his bedside table to retrieve a condom, which he put on. After engaging in vaginal intercourse, the accused and the complainant showered and briefly slept. The complainant was awoken by the accused sometime later, who initiated sex a second time. The accused motioned towards his bedside table, which the complainant understood to be consistent with retrieving a condom. During intercourse, the accused asked the complainant if she thought it felt better this time, which she took as a reference to the different sex position. In fact, this was a reference to the lack of contraception, which the complainant did not appreciate until after ejaculation. The accused was ultimately charged with sexual assault contrary to s 271 of the Code. He was acquitted at trial, which was overturned on appeal to the British Columbia Court of Appeal. The accused appealed to the Supreme Court of Canada.

A two-step analysis was outlined in the Hutchinson decision for assessing the actus reus of sexual assault, which requires the absence of consent to sexual touching. Pursuant to s 273.1(1) of the Code, consent is the “voluntary agreement” on the part of the complainant “to engage in the sexual activity in question”. The analysis is based exclusively on the complainant’s subjective state of mind at the time the touching occurred (R v Ewanchuck [1999] 1 SCR 330 at para 26). The complainant’s subjective perspective is determinative.

If the complainant has not consented, the analysis ends for the purposes of the actus reus of sexual assault. If voluntary agreement is established, or if there is a reasonable doubt about a lack of voluntary agreement, the analysis proceeds to the second step (Hutchinson at para 4). Apparent consent may be vitiated at the second step by proof a factor outlined under s 265(3) of the Code, which includes fraud under s 265(3)(c). Fraud is established where there is proof of dishonesty on the part of the accused, which includes the non-disclosure of important facts, and a corresponding deprivation in the form of serious bodily harm (at para 67).

In Hutchinson, the majority noted that the “sexual activity in question” is the “specific physical sex act” in which the complainant voluntarily agreed to participate (at para 54). The majority held that collateral matters, such as effective birth control or STD status, was not relevant (at para 5). The majority was concerned with expanding the meaning of “sexual activity in question” to include “potential infinite collateral conditions”, which could render the law uncertain and improperly broaden the net of criminal liability (at para 27). Vaginal intercourse was the physical sex act considered at the first step, while consideration of the accused’s condom sabotage was reserved for the second step under s 265(3)(c) of the Code.

On appeal to the Supreme Court of Canada in Kirkpatrick, the issue was whether condom use should form part of the “sexual activity in question” under s 273.1(1) of the Code for the purposes of assessing whether the actus reus of the offence is established. Alternatively, whether a lack of condom use should be assessed as a factor liable to vitiate voluntary agreement pursuant to s 265(3)(c) of the Code.

The majority opinion emphasized that the legal meaning of “sexual activity in question” cannot be “narrowly drawn or fixed for all cases” (at para 40). The majority recognized that sexual assault cases are highly fact-driven, and stated at para 40 that:

[40] … Much will depend on the facts and circumstances of the individual case. In a very real way, it will be defined by the evidence and the complainant’s allegations. What touching does the complainant say was unlawful? Which acts were beyond the boundaries of any consent given? The sexual activity in question will emerge from a comparison of what actually happened and what, if anything, was agreed to. This is bound to change in every case.

The majority determined that condom use may form part of the “sexual activity in question” on the basis that “sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom” (at para 43). The law recognizes that consent to a form of touching can depend on what is being used to do the actual touching (at para 44). Sex without a condom involves direct skin-to-skin contact, while sex with a condom does not. The majority accepted at para 44 that this amounted to a crucial difference and stated as follows:

[44] …[B]eing touched by a condom-covered penis is not the same specific physical act as being touched by a bare penis. Logically and legally, direct and unmediated sexual touching is a different physical act than indirect and mediated contact. Indeed, given the centrality of the distinction, whether a condom is required is basic to the physical act.

The majority reasoned that such an interpretation of s 273.1(1) was consistent with Parliament’s objective of giving effect to the principles underlying the sexual assault prohibitions, such as equality and human dignity (at para 45). Non-consensual condom refusal or surreptitious condom removal constitutes sexual violence generating various forms of harm, including both physical and psychological consequences (at para 60). Overruling the complainant’s insistence on the use of a condom is unlawful because the accused “is not permitted to privilege his desire over her express limit and use her as a means to his sexual ends” (at para 63). The law recognizes that all persons are entitled to refuse sexual contact at any time and for any reason, which is consistent with an individual’s inherent right to exercise full control over their own bodies (at para 51). Principles of dignity, autonomy, and agency mandate that each individual is entitled to “set the boundaries and conditions under which they are prepared to be touched” (at para 51).

The opinion of the majority was that “placing required condom use outside of the core definition of consent under s 273.1 would undercut these principles and Parliament’s goals” (at para 55). Condom use could not be secondary or incidental to the issue of voluntary agreement where the complainant expressly conditioned her consent on its use (at para 48). Where the physical sex act is contingent upon condom use, such use must be considered at the first step in the analysis.

The majority opinion made clear that, “while vitiation by fraud may still arise in other cases, it does not apply when condom use is a condition of consent” (at para 45). The majority opinion reasoned that the complainant, who has insisted upon condom use, should not be required to prove deprivation or physical harm because she is entitled to insist upon a condom for “whatever reason” is meaningful to her (at para 70). The majority’s opinion was that the law should not inquire into those reasons. The majority opinion recognized that establishing deprivation can be invasive and fails to capture the associated psychological consequences (at para 71). The majority opinion purported to distinguish Hutchinson at para 83 and stated that:

[83] Hutchinson did not establish the sweeping proposition that all cases involving a condom fall outside s. 273.1 and can only be addressed, if at all, when the conditions of fraud are established. As this new case at bar demonstrates, condom use is not always collateral or incidental to the sexual activity in question. Indeed, conditioning agreement to sexual touching on condom use goes to the heart of the specific physical activity in question and the existence or non-existence of subjective consent, and there is no need to resort to the doctrine of fraud and its stringent legal requirements in this circumstance. Hutchinson thus remains binding authority for what it decided, but it does not apply to when the accused refuses to wear a condom and the complainant’s consent has been conditioned on its use.

The majority opinion summarized as follows at para 101—102 with respect to the current state of the law on condom use and consent:

[102] Where condom use is a condition of the complainant’s consent to the sexual activity in question, it will form part of the “sexual activity in question” and the consent analysis under s. 273.1. If the actus reus is established, the focus will shift to the mens rea. If the accused is mistaken and has not been reckless or willfully blind to the complainant’s consent, and has taken reasonable steps to ascertain this consent, they may be able to put forward a defence at the mens rea stage of the analysis (s. 273.2; Ewanchuk, at paras. 25, 47 and 49; J.A., at para. 42; Barton, at paras. 90-94). The trier of fact will be the best placed to assess in light of the evidence whether a condom was removed in ignorance of the complainant’s conditioned consent, or whether, for example, it accidentally fell off without the accused noticing.

[103] In cases involving condoms, Hutchinson applies where the complainant finds out after the sexual act that the accused was wearing a knowingly sabotaged condom. Hutchinson remains good law and applies only to cases of deception, for example where a condom is used, but rendered ineffective through an act of sabotage and deception. If the complainant finds out during the sexual act that the condom was sabotaged, then they can revoke their subjective consent, the actus reus of sexual assault is made out, and there is no need to consider the fraud analysis.

As noted at the outset, the majority opinion gave rise to a very strong dissent. The dissenting opinion emphasized that the majority in Hutchinson held that condom use is not part of the “sexual activity in question” under s 273.1(1) such that, when voluntary sex is contingent upon condom use, but that condition is “circumvented in any way, the sole pathway to criminal liability is the fraud vitiating consent analysis under s 265(3)(c)” (at para 113). The dissent was of the view that, on the facts, the decision in Hutchinson governed the issue in Kirkpatrick and could not be distinguished (at para 115). The dissent stated further at para 115 that:

[115] …[E]ven were our colleague not bound by Hutchinson, she neither acknowledges nor accounts for how her proposed re-interpretation of s. 273.1(1) opens the door to over-criminalization, the burden of which is likely to fall disproportionately on the same marginalized communities she claims to defend. It is, after all, precisely the interpretation that our colleague now revives from the minority reasons in Hutchinson that was rejected by the majority as failing to strike the proper balance between protecting sexual autonomy and ensuring the “blunt instrument” of the criminal law is applied with certainty and restraint (para. 18). The unsustainable distinction that our colleague draws to escape Hutchinson skates over the risk of over‑criminalization that the majority in Hutchinson identified in the minority judges’ approach. Our colleague sweeps aside the “principled and clear line between criminal and non-criminal conduct” achieved in Hutchinson, which ensured that the failure to respect a partner’s conditioning of sex on condom use is criminalized only where it is both dishonest and potentially harmful to the complainant (para. 49).

Ultimately, the dissent was of the opinion that Hutchinson had to be applied or the decision had to be overturned (at para 116).

The reasons of the majority and the dissent are attractive for different reasons. The majority opinion is correct that sexual assault cases are, by nature, highly contextual. The meaning of “sexual activity in question” must be broad enough to encompass a wide range of physical sex acts. Further, there is undeniably a fundamental and qualitative difference between sex with a condom and sex without a condom. Interestingly, the majority notes that this very difference is often cited by partners who refuse to wear a condom or who surreptitiously remove one. Importantly, it should be uncontroversial that a person’s decision to have sex with a condom should, at least from a moral perspective, be respected by their sex partner.

Regardless of whether condom use is assessed at the first or second step in the analysis, the criminal law is well placed to support a person’s decision to have sex only on the condition that a condom is used. However, the manner in which the law applies that principle to the facts of a particular case is important. The dissenting opinion’s emphasis on the reasons in Hutchinson cannot be overlooked or skirted because the narrow reading given to Hutchinson by the majority is not well supported. There was a clear direction given in that case whereby effective birth control is a condition collateral to the agreed upon physical act, which takes it outside of the scope of s 273.1(1). It is unclear that the majority opinion in Hutchinson intended to limit “effective birth control” to condom sabotage alone. The majority opinion itself uses language referring to birth control as a condition.

In support of the opinion that condom use should be assessed under s 273.1(1), the majority noted that non-consensual condom refusal or surreptitious condom removal is a form of sexual violence, which can be accompanied by both physical and psychological harm. The analysis under s 265(3)(c) is concerned with physical harm, which included the risk of pregnancy in the Hutchinson decision. It may be that, rather than giving a narrow reading to Hutchinson, the majority could have recognized psychological harm as a component under s 265(3)(c). This would be consistent with the policy considerations tied to the analysis under that section, and could have struck a better balance between protecting the interests engaged by the sexual assault provisions of the Code and the risk of over-criminalization, as well as supporting stare decisis.