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Content Warning: Mentions of Sexual Assault and Rape
On the week of July 29, 2022, the Canadian Supreme Court ruled it a crime to revoke a promise to wear a condom during sexual intercourse, following an appeal of the 2017 case, R. vs. Kirkpatrick by the Crown (prosecutors) to the British Columbia Court of Appeal.
In R. vs. Kirkpatrick (the woman’s name is shielded by a publication ban), two people who met online decided to meet in person to test their sexual compatibility. The woman requested Mr. Kirkpatrick to wear a condom, but this was only done once out of their two sexual encounters. Although Mr. Kirkpatrick was charged with sexual assault, the judge dismissed the case due to a lack of evidence, and because the complainant had consented to sexual intercourse, therefore consenting to the “sexual activity in question”.
Subsequently, the Supreme Court of Canada identified that the judge made a mistake in concluding that there was a lack of evidence; the complainant provided evidence of her refusal to have sexual intercourse without a condom to Mr. Kirkpatrick, which has deemed the case valid for a retrial.
The new ruling has stated, “sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom,” which clarifies current laws on sexual consent, especially Section 273.1(1) of the Criminal Code, which defines as an individual’s voluntary agreement to “engage in the sexual activity in question”.
This ruling occurs in wake of the rising popularity of “stealthing”, where women and men have reported events where their male partners secretly remove condoms during sexual intercourse. This exposes both parties to sexually transmitted diseases, and unintended pregnancies in heterosexual intercourse. In countries where abortion has become inaccessible, like Egypt, Brazil, and 21 states in the United States, unintended pregnancies can serve consequences, especially for the mother.
It is the mother who usually takes on the responsibility of parenting, which, for those who struggle financially and mentally, can prove burdensome. In the Turnaway Study, researchers found that there was a higher rate of poverty, stress, and chance of remaining with an abusive partner in women who were denied abortions. Yet, there is no doubt that single fathers can also suffer the same symptoms in similar circumstances.
In 2017, an anonymous woman called “Cindy” described being too “intimidated” to say anything when she realised her partner committed stealthing during sexual intercourse, and refrained from reporting the incident in fear of “being classified as a slut”. Kathryn Smerling, a psychotherapist at Mount Sinai, observed that her clients often feel shameful and suffer from post-traumatic distress, abstaining from sexual intercourse after the incidents of stealthing.
Canada is not the first to prohibit the act of stealthing; in 2021, California signed a bill that made stealthing illegal by amending the state’s civil definition of battery, giving the plaintiff the right to sue the defendant. In the United Kingdom, where stealthing has also been ruled illicit since 2017, there has only been one successful prosecution of it; only 1% of stealthing victims reported it to the police out of fear of being ostracised, whilst a mere 1.3% of cases ended up in prosecution. In other countries like Kenya, Brazil, South Korea, and France, stealthing is not classified as illegal, or rape.
Ultimately, the ruling in the Canadian Supreme Court is a progressive step in the feminist movement; it lawfully protects Canadian women (although its proper implementation is yet to be observed) from the repercussions of unconsenual, unprotected sex.
Written by: Claire Lee
Edited by: Peggy Chen