Explicit consent needed for unprotected sex, says Canada's top court

A person can be charged with sexual assault for not wearing a condom without a partner's consent during sex, Canada's top court ruled on Friday. The case was decided 5-4.

The court was unanimous in saying Ross McKenzie Kirkpatrick must go on trial for sexual assault for not wearing a condom during sex with a woman who consented only to protected sex. It did not say whether he was guilty of those charges.

Kirkpatrick was initially acquitted of the charges in British Columbia before an appeals court ordered a retrial.

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The ruling was overturned by the British Columbia Court of Appeal, which ordered a new trial. Kirkpatrick appealed that decision to the country’s top court, which heard arguments in November.

“Sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom,” states the ruling, which was approved by a 5-4 vote by the court and was released Friday.

It adds: “Condom use cannot be irrelevant, secondary or incidental when the complainant has expressly conditioned her consent on it.”

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.

"Since only yes means yes and no means no, it cannot be that 'no, not without a condom' means 'yes, without a condom'," Justice Sheilah Martin wrote in the majority opinion.

"Recognizing that condom use may form part of the sexual activity in question is also the only way to respect the need for a complainant's affirmative and subjective consent to each and every sexual act, every time," the judgment read.

Kirkpatrick met a woman online and then in person for a possible sexual relationship. They had sex twice in one night in 2017, once with a condom and then again without one, though without the woman's knowledge, according to the complaint.

The complainant said she did not know that he did not use a condom the second time, and if she did, she would not have agreed to it.

Under Canadian law, sexual assault requires proof of a lack of consent to a particular sexual activity in question.

(With NYT inputs)