Two people meet online and agree to hook up. Before they have sex, the woman insists that she will only do so if a condom is used. The man agrees. Sexual intercourse is performed on two occasions with a condom. But on a third time, the man reaches over as as if grab a condom but does not actually use it. They have unprotected sex. The woman goes to the police alleging that she did not consent to have sex without a condom. In this scenario, did the man commit sexual assault?
That is the question that the Supreme Court of Canada will soon grapple with. In a decision last week, the SCC agreed to hear an appeal from a decision of the British Columbia Court of Appeal. In that decision, all three judges found that such actions could constitute a sexual assault. But they did so for different reasons. One judge found that on the scenario provided above, the woman did not give her consent to the physical act of sex without a condom. Sex without consent is sexual assault. Another judge disagreed. She found that consent only applies to the basic physical act of the sexual activity. However, she found that any consent was vitiated by fraud. The result is the same; sexual assault is made out. The third judge agreed with both sets of reasons – the man could be convicted either because the woman did not consent or because her consent was vitiated by fraud.
Given the confusion in this area of the law, and the potential impact it will have on society, a clarifying ruiling from the Supreme Court of Canada will be welcome.