No Still Means No: Clarifying the 5-4 Split in R v Kirkpatrick

At the end of July 2022, one message rang loud and clear across the country, straight from the Supreme Court: when it comes to consent, only yes means yes. 

It was far from the first time that the SCC had said this or something like it. But this time, when the SCC released its decision in R v Kirkpatrick, 2022 SCC 33 [Kirkpatrick], the message was ever so slightly different: “it cannot be that “no, not without a condom” means “yes, without a condom” (Kirkpatrick, para 2).

From the reactions of my friends and family, the average Canadian seemed to intuit the very thing that the SCC struggled with over the five months it took to render judgement in Kirkpatrick: If a person consents to sex with a condom, that means they do not consent to sex without a condom. 

Yet early media reports caused confusion, printing misleading reports that implied roughly half of the SCC didn’t think a failure to wear a condom could be sexual assault. Even the CBC reported that the decision was split, and had to print a clarification. This “5-4 split” confused quite a few people. I can’t count the number of times I heard variations of, “Wait, wasn’t this already the law?” or, “Four judges didn’t think that was sexual assault?”

The confusion is understandable, with the cavalier way “5-4 split” was thrown around in mass media. So I’ll try to explain what, exactly, the SCC was split about, and what they weren’t (spoiler alert: the court was unanimous that failure to use a condom could be sexual assault; they disagreed about reasoning).

 

Facts of Kirkpatrick

The appellant, Ross McKenzie Kirkpatrick, was charged with sexual assault after engaging in condomless intercourse with the complainant in March 2017. 

Mr Kirkpatrick and the complainant first met online before deciding to meet in person. The complainant made it clear throughout that she never had and would never have sex without a condom. She said it was a concern for safety—not only hers, but her partner’s as well. 

They made plans to meet at Mr Kirkpatrick’s home. The complainant brought condoms with her and asked if he had any. He wore a condom and she told him he could not ejaculate on her vagina, so he ejaculated onto her stomach. Afterwards, she asked to see the condom. He showed it to her and she was satisfied that he had used it.

The complainant fell asleep. When she woke, Mr Kirkpatrick turned towards the bedside table where he had gotten a condom from before. She thought he was getting a condom, and they had sex again. This time, Mr Kirkpatrick ejaculated into her vagina. At that point, she realized he was not wearing a condom. 

The key issue at trial would be consent. The trial judge dismissed the charges.

 

Criminal Code, Hutchinson, and the Lower Courts

Before you get angry or confused—the trial judge had good reason. To understand why, I must explain the law that bound his decision. 

Consent in sexual assault is defined in the Criminal Code, RSC 1985 c C-46:

273.1 (1) … consent means…the voluntary agreement of the complainant to engage in the sexual activity in question.

The Criminal Code also instructs situations in which there is no consent:

273.1 (2) … no consent is obtained if

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

As sexual assault is a type of common assault, the no-consent provision for common assault also applies:

265 (3) For the purposes of [assault], no consent is obtained where the complainant submits or does not resist by reason of

(c) fraud; 

You might think section 273.1(1), or even (2)(d), covers this situation. The complainant did not agree to the sexual activity in question: sex without a condom. But this case was decided on the meaning of “sexual activity in question” as informed by a case called R v Hutchinson, 2014 SCC 19 [Hutchinson]. 

The broad strokes summary of Hutchinson is as follows: Woman wants man to wear a condom because she doesn’t want to get pregnant. Man wants to impregnate woman. Man agrees to wear a condom but secretly pokes holes in it, rendering it ineffective. Man charged with sexual assault.

The SCC held that the complainant’s consent to the sexual activity was voluntarily given under section 273.1. However, her consent was vitiated (rendered invalid) by Hutchinson’s tampering, because he obtained her consent through fraud under section 265(3): When he tampered with the condom, Hutchinson (1) deceived the complainant and (2) caused a deprivation to the complainant, through his deceit, in the form of the risk of serious bodily harm (yes, they did mean pregnancy). 

This fraud-vitiating-consent framework has been applied by trial and appellate judges in sexual assault cases over the last eight years. In deciding Hutchinson, the SCC also said that condom use was not part of the “sexual activity in question”:

Mistakes on the complainant’s part (however caused) in relation to other matters, such as whether the partner is using effective birth control or has a sexually transmitted disease, are not relevant at this stage. (Hutchinson, para 5 [emphasis added]). 

This passage has been interpreted to mean that condom use has nothing to do with consent. Consent is entirely about the type of sexual activity: kissing, touching, oral sex, vaginal penetration, or anal penetration. Consent doesn’t care about how it happens, only about what happens.

Instead, the law will consider whether that consent was rendered invalid only if an accused obtained that consent through an act of fraud (requiring both deceit and deprivation).

The trial judge in Kirkpatrick was bound by Hutchinson. He could not consider whether there was no consent under section 273.1. On the no-evidence motion, the judge had to consider whether there was evidence to convict of sexual assault under the fraud-vitiating-consent framework. Either no evidence indicated that the accused had caused a deprivation, or there wasn’t enough evidence to support a conviction. The trial judge dismissed the charges.

The Crown appealed. The British Columbia Court of Appeal unanimously allowed the appeal, overturned the dismissal, and ordered a new trial. But they, like the SCC, split on their reasons why. Justice Bennett found that Hutchinson applied but there was some evidence of fraud. Justice Groberman agreed that there was no evidence of fraud, but found that the “sexual activity in question” was sex without a condom and found that there had been no consent. Justice Saunders agreed with both of her colleagues: there was no consent under 273.1 and there was evidence of fraud. 

Mr Kirkpatrick appealed to the SCC.

 

The Moment You’ve All Been Waiting For: The 5-4 Split

You’ve heard that the SCC split 5-4 in Kirkpatrick. You’ve also heard that the SCC was unanimous. 

So which is true? Well, both.

A unanimous court held that the appeal should be dismissed and a new trial ordered. What split the court was the reason why a new trial was required. Ultimately, the five-justice majority agreed with Justice Groberman: there was no consent under section 273.1 to the “sexual activity in question”. For the majority, sex with a condom and sex without a condom are fundamentally different and distinct sex acts.

Importantly, the four-justice minority did not hold that failure to wear a condom isn’t sexual assault. The minority stated that the legal reason why it could be sexual assault is the accused’s deception, not the lack of the complainant’s subjective consent. It’s a confusing legal standard for many people, and one poorly explained by fast media. As I understand it, the minority’s real point is that, legally, a “specific sex act” is the physical action (intercourse), and not the circumstances of it (with or without a condom). 

 

The “5”: Distinctions With a Difference

For Justice Sheilah Martin (writing on behalf of herself and Justices Michael Moldaver, Andromache Karakatsanis, Nicholas Kasirer, and Mahmud Jamal), condom use forms part of the “sexual activity in question”. It’s simple: If your partner tells you to wear a condom, and you don’t, you may be convicted of sexual assault.

Justice Martin turned to Hutchinson, where the SCC defined the “sexual activity in question” as the “specific physical sex act” and provided examples including “kissing, petting, oral sex, intercourse, or the use of sex toys” (Hutchinson, para 54). Justice Martin asserts that the physical act must include condom use, because

sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom. To state the obvious, the physical difference is that intercourse without a condom involves direct skin-to-skin contact, while intercourse with a condom involves indirect contact (Kirkpatrick, para 43). 

The “obvious” that Justice Martin was stating is this: Skin-to-skin contact and indirect contact are not the same thing. Physically. The SCC’s specific reference to sex toys in Hutchinson indicates that the court was aware at that time of the difference between direct and indirect contact. Consent to insert a finger is not consent to insert, for example, a dildo. These two forms of “specific physical sex act” are different in many ways. Direct or indirect skin-to-skin contact is certainly one, and one that is exactly comparable to the difference between use and non-use of a condom. 

Justice Martin makes this point, too. She analogizes to the difference between touching a person’s breasts over or under their clothing (Kirkpatrick, para 44). In law, these are different specific sex acts. This example is indistinguishable from the direct-indirect distinction between use and non-use of a condom. The physical action is the same. The type of contact is different.

I said before that, per Hutchinson, consent cares about what and not how. The majority in Kirkpatrick changed this. Not only does consent care what happens, but also how it happens, as a matter of fundamental human dignity and autonomy (Kirkpatrick, para 55). This, for the majority, “properly places the focus at the doctrinal heart of the actus reus analysis: was there actual consent under s. 273.1?” (Kirkpatrick, para 50). 

 

The “4”: An Uncertain Uncertainty

The minority judgement, authored jointly by Justices Suzanne Côté, Malcolm Rowe, and Russell Brown (with Chief Justice Richard Wagner in support) criticizes the majority for a number of reasons. Their main objection, however, was simple: Hutchinson binds.

Hutchinson binds because any decision written by the Supreme Court, as an apex court, must be interpreted broadly. Fact-specific limitations where the SCC intended broad, governing principles, threatens necessary aspects of our legal order (stare decisis, the principle of deciding consistently with prior decisions, and the rule of law).

According to the minority, Hutchinson says that condom use is irrelevant when determining consent. It was about consent to unprotected sex, full stop. It doesn’t matter that the accused in that case wore a condom, but Mr Kirkpatrick didn’t. It doesn’t matter that the SCC specifically referred to “effective” condoms (Hutchinson, para 54). The SCC was clear: birth control does not come into the consent question.

In my view, the SCC said “effective birth control” because it meant “effective birth control”. If they had wanted, in Hutchinson, to say that birth control is not relevant to the question of consent, they would have said that. 

The minority contends that failure to wear a condom will only be criminalized “only where it is both dishonest and potentially harmful to the complainant” (Kirkpatrick, para 115). But a failure to use a condom is always harmful to the complainant. It carries significant risks of physical and psychological harm. And the dishonesty requirement is not unique to the fraud analysis—where there is no consent under section 273.1, an accused can still show that they lacked the mens rea of the offence. A lack of dishonesty, an honest mistake, a condom that breaks, all of these scenarios are captured when consent is found or not found under section 273.1. Any risk of over-criminalization on the Kirkpatrick framework is overblown.

This is one part of the minority where they simply go too far. At paragraph 301, they state:

We do not mean to suggest that non-disclosure of one’s failure to wear a condom will always be criminal.

I would like to think that, if one person insists on condom use, a failure to use one will always be criminal, regardless of disclosure of that fact. (Certainly, if I’ve said “use a condom”, whether or not they tell me they don’t have one on, it’s sexual assault to not use one.) Some things are better left in the bedroom. Particular preferences. Kinks. Lingerie choices. But the refusal to wear a condom in express violation of your partner’s wishes? No. Not that.

Some people, including the minority (see para 163), are concerned that the decision imports uncertainty into the criminal law, but I cannot fathom how that might be. The majority was clear: where the issue relates to use or non-use of condoms, consent is determined under section 273.1. Where the issue is a sabotaged condom, consent may be vitiated by fraud under section 265(3). 

Or, in simpler terms:

Consent to sex with condom + use of condom = valid consent.

Consent to sex with condom + non-use of condom = no valid consent.

An expansive reading of Hutchinson has dangerous implications that the minority has not appropriately considered. While they acknowledge that the fraud framework will account for deception and deprivation in the form of risk of serious bodily harm, the question remains…

 

…Who Accepts that Risk?

And what, exactly, is the risk of serious bodily harm that Parliament intends to criminalize? 

At one point, Justice Martin voices what, for me, is the core of the issue:

[T]he risk of experiencing non-consensual condom refusal or removal is not distributed equally throughout the population (Kirkpatrick, para 61). 

For the majority, this risk is not equal for racialized populations, vulnerable women, people with diverse identities, and sex workers. 

But it goes so much farther than that. 

It all depends on how you characterize risk. If Hutchinson governed, an accused would have to deceive the complainant and cause a deprivation, likely in the form of serious bodily harm. This ignores the serious psychological harms that victims of this type of sexual assault experience (Kirkpatrick, para 37). This also ignores that use of a condom carries different meaning and weight depending on who the partners are. 

Does the failure to use a condom not constitute sexual assault if the partner is incapable of getting pregnant? If the partner that fails to use the condom has HIV, but a low viral load, and their partner is on PrEP, is there no “serious risk of bodily harm” in the form of an STD? If the sexual act in question is anal penetration, and neither partner has an STD, is it not sexual assault if the penetrating partner fails to wear a condom despite the insistence of the other person? 

And what about the psychological harm? The shame? The fear? The feeling that your body has been violated, that it isn’t your own? 

For consent to have meaning, it must rest on the notion that partners in a sexual encounter are equal. They are entitled to make their own choices about what happens to their bodies, with whom, in what way, and on what part of their body. Any framework of consent that doesn’t give effect to that power of choice undermines the protection towards which the criminalization of sexual assault aims. Regardless of the situation, the risk is greater for the person that doesn’t get to make the choice—whether the risk is to their physical body, or the harm is the indignity that they didn’t get to make the choice at all.