Part I – Contraception in the Court: NSCA Hearing R v Hutchinson
If used properly, a male condom is up to 98% effective in preventing pregnancy. If a man makes pinpricks in a condom in order to secretly get his girlfriend pregnant, as was done by Mr. Craig Jaret Hutchinson (Hutchinson), unsurprisingly, that number drops dramatically. Last Monday, the Nova Scotia Court of Appeal (NSCA) heard arguments in the case of R v Hutchinson, which appealed the Supreme Court of Nova Scotia’s decision 2011 NSSC 361. What is at issue in this case is the question of whether lying about contraception constitutes sexual assault, as defined by the Criminal Code. The five-member panel will need to provide a decisive answer.
My two part series will highlight the Hutchinson decision within a larger context, first as it relates to the entanglement between sexual assault, informed consent and the use of contraception. Next week, I will use this case as a proxy in trying to navigate the murky waters of “serious bodily harm” in the context of aggravated sexual assault.
Mr. Hutchison, the accused, and N.C. were in a romantic relationship. N.C. consented to having sexual intercourse Hutchison, provided they use condoms as a form of contraception. When N.C. was on her period, however, she did not believe she could get pregnant and so they had sex without a condom.
In an effort to impregnate N.C. and save a failing relationship, Hutchison poked holes in the condoms he would later use during intercourse. N.C. was not informed of this. So, in September 2006, when Hutchinson urged N.C. to take a pregnancy test, she was shocked to learn that she was pregnant. The news of pregnancy did not save the relationship. Shortly after discovering she was pregnant, N.C. broke up with Hutchinson. N.C went through counselling and decided to have an abortion.
After the break up, Hutchinson confessed to N.C. that he had sabotaged his condoms. Despite being ignored by N.C., Hutchinson contacted her via text message anyway, warning her about the possibility of having contracted a Sexually Transmitted Infection (STI). The text messages read:
“I Wanted A Baby With U So Bad Sabotaged The Condoms So Now They R Not Safe…. I poked Holes In them Al. I don’t Want U 2 Get A STD.”
This case was first heard in 2009. Justice Moir (2009 NSSC 51) granted a defence motion for directed verdict on a charge of aggravated sexual assault. Moir J. found that, despite fraudulent and “dastardly” behaviour, Hutchinson’s actions did not fall into the category of sexual assault. On appeal, the Nova Scotia Court of Appeal (2010 NSCA 3) found otherwise. The Court touched on the difficulties of applying the vague test outlined by Cory J. in R v Cuerrier. So, by a slim majority, the appellate level court found that, in order to vitiate consent, there must be dishonesty and deprivation. Deprivation is defined as engaging in a dishonest act, which places the victim in “serious bodily harm.” The NSCA allowed the appeal and ordered a new trial, which was heard by Justice Couglan.
At the Supreme Court of Nova Scotia, Justice Couglan found that Hutchinson was guilty of sexual assault, but not of aggravated assault. N.C. consented to sexual intercourse using contraception (except during times of menstruation), but not with damaged condoms. For a charge of sexual assault, there must be consent to the sexual activity in question. Justice Couglan relied on the majority judgement in R v JA, 2011 SCC 28, in which Chief Justice McLachlin stated:
“The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity” (para 34).
Accordingly, Couglan J. found that N.C. did not consent to sexual activity without a condom or damaged condoms. Additionally, Hutchinson damaged those condoms secretly while knowing that N.C. would not have consented to it.
Section 268.(1) of the Criminal Code is the provision that defines aggravated assault: “Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.” Couglan J. cited Justice Cory in R v Cuerrier  2 SCR 371 at para 95, in providing his answer as to whether or not Hutchinson’s behaviour endangered N.C.’s life:
“[Aggravated assault] requires the Crown to prove first that the accused’s acts “endanger[ed] the life of the complainant” (s. 268(1)) and, second, that the accused intentionally applied force without the consent of the complainant (s. 265(1)(a))…There can be no doubt the respondent endangered the lives of the complainants by exposing them to the risk of HIV infection through unprotected sexual intercourse… There is no prerequisite that any harm must actually have resulted. This first requirement of s. 268(1) is satisfied by the significant risk to the lives of the complainants occasioned by the act of unprotected intercourse.” (para 54)
Couglan J. found that there was no evidence given at trial to determine the death rate for a mother when she undergoes an abortion or gives birth to a baby. Therefore, he found that Hutchinson’s actions did not, beyond a reasonable doubt, expose N.C. to a significant risk to her life.
Hutchison now faces a sentence of eighteen months in prison, a D.N.A. order and a requirement to comply with the Sex Offender Registration Act for 20 years.
The lower court held that lying about the efficacy of contraception constitutes sexual assault (if the partner would only consent to intercourse with the use of contraception). Does that open a Pandora’s box? Though this case deals specifically with a man deceiving a women into conceiving, the decision could ostensibly hold women equally guilty of sexual assault if they lie to their partners about their own contraception. So, if a woman lies to a partner that she is on the pill, or any other such contraception, in an effort to deceive him into impregnating her, would that constitute sexual assault? What if she does not become pregnant? What if she miscarries? Technically her partner did not consent to that type of activity, so she could be labelled a sex offender and face incarceration.
Not only is the pill not 100% effective, but sometimes women forget to take it, or fail to take it at the correct time. If a woman told her partner she was on the pill , but did not inform him of any lapses she had in either forgetting to take the pill on a given day or taking it several hours late, would that constitute sexual assault? Would it make a difference if she did not take the pill unintentionally but she she simply forgot to tell her partner that she had the form of contraception was not as effective as he may have believed? What if she intentionally did not tell her partner in that scenario? This line of reasoning quickly transitions into a slippery slope.
Although it is abhorrent that a person would intentionally sabotage condoms so that he could impregnate his girlfriend, it is important to understand the implications this could have on the other side of the bedroom. These are big questions that the Nova Scotia Court of Appeal must confront this year.
We all cringe at the idea of the state peeking into our bedroom. But, given the social consequences of this decision, is it not time for the state to answer these important questions?