B.C. sexual assault advocates welcome new Supreme Court condom decision

Advocates across B.C. are welcoming a new decision by the Supreme Court of Canada which could set an important legal precedent on consent and sexual assault.

In a 5-4 decision Friday, the court ruled that if a complainant’s sexual partner ignores the condition that a condom be used, the intercourse is non-consensual and the complainant’s autonomy and equal sexual agency have been violated.

In a statement, Kate Feeny, director of litigation at West Coast LEAF, says Friday’s decision clarifies the meaning of consent and affirms “dignity, personal autonomy, sexual agency, and equality to Canadian sexual assault law.”

“To put it simply, every person has the right to control how they are touched at every stage of a sexual interaction,” she said.

According to West Coast LEAF, research has shown that non-consensual condom refusal and removal are a widespread and devastating form of sexual violence.

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“Until today, there was a lack of clarity in the law over whether these violations could constitute sexual assault in and of themselves, or could only override a survivor’s legal consent in a narrow set of circumstances where the accused person lied about their condom use and there was a risk of serious physical harm to the survivor,” the law firm wrote.

Sometimes referred to as ‘stealthing,’ removing a condom not only causes psychological harm, but is linked to pregnancy and passing on sexually transmitted infections.

“Survivors who engage with the criminal justice system already face steep barriers to accessing justice. Invasive inquiries to establish physical harm from condom refusal or removal are not only a distraction from the underlying harm to the survivor’s dignity and autonomy, but also make the court process even more stressful or re-traumatizing for survivors,” Feeney said.

Meanwhile, Vancouver criminal lawyer Michael Shapray says it’s important that people are now aware of the ruling, and what it means for them moving forward.

“We consent to sexual interaction. If that is [not] a part of the discussion, [it] certainly could result in criminal liability if someone doesn’t comply with that,” he explained to CityNews.

However, Shapray notes that even if the agreement to wear a condom is only mentioned once, it may technically apply to all other encounters with that same sexual partner.

“I don’t think someone can assume that it only applies to the first interaction, and can therefore disregard that in the future,” he said.

In today’s day and age, Shapray says there needs to be greater education and focus on what consent means and entails, and notes that you cannot be charged with sexual assault if there was no discussion about condom use prior to consensual sex.

“People need to be aware of their circumstances and aware of the nature of the agreement for sexual interaction between the parties,” he said.