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Removing Condom Without Partner’s Consent Is Sex Crime: Canada’s Top Court

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Mumbai: The Supreme Court of Canada has ruled that it is a crime to remove condoms during intercourse without the express permission of the partner.

As The New York Times reports, the decision was announced in a case that involved two people interacting online in 2017 to see if they were sexually compatible, and then met to have sex.

The woman, whose name was protected by the publication ban, predicted her consent to sex over condom use. During one of the two sexual encounters in that meeting, the accused man was not wearing a condom, unknown to the woman, who later got preventive HIV. treatment. The defendant, Ross McKenzie Kirkpatrick, was charged with sexual assault.

However, the lower court judge dismissed the allegation, accepting Kirkpatrick’s argument that the complainant had consented to sex despite failing to wear a condom. The decision was overturned by the British Columbia Court of Appeals, which ordered a new trial. Kirkpatrick appealed that decision to the nation’s top court, which heard arguments last November.

“Intercourse without a condom is a fundamentally and qualitatively different bodily act than the intercourse with a condom,” says the ruling, which was approved by the court by a 5-4 vote, and released Friday, according to New York City.

“The use of condoms cannot be irrelevant, secondary or incidental when the complainant has expressly consented to it,” the court said. Kirkpatrick’s lawyer said the new interpretation of the criminal code, which will be standard across the country, would drastically change the rules around sexual consent, making it almost like a binding contract that could be signed in advance.

“In Canada, consent is always in the moment. But what makes this decision is it creates an element of consent away from the moment of sexual activity – in this case, the day or even the week before the sexual encounter,” Phil Coates Surrey, Shared by a defence attorney in British Columbia.

He added, “If there’s a moral to be taken from this for everyone, but particularly for men, is that you have to be sure there is active and engaged consent. And if you are not sure, you should ask. But unfortunately, that’s not how sexual encounters go.”

Lise Goettel, professor of women’s and gender studies at the University of Alberta and an expert on sexual consent and Canadian law, also shared her views.

“In no other jurisdiction in the world is it clear that when someone agrees to have sex with a condom and removes it without their consent, it constitutes sexual assault or rape.”

“The court says very clearly that there is no consent in that circumstance — it doesn’t matter whether the non-consensual condom was to be removed, or if it was deceptive,” she said, according to the NYT report.

According to some studies, resistance to condom use has become widespread over the past decade, and a significant number of men and women who have sex with experienced partners report removing condoms without their consent.

The practice, popularly known as “stealthing,” has become prevalent enough that some Canadian universities have incorporated it into their sexual violence prevention policies. The report said that people have been convicted by courts of crimes for removing condoms during intercourse by the courts in Britain and Switzerland.

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