Secretly Poking Holes in Condoms Vitiates Consent to Sexual Activity: R v Hutchinson
After two trials and cycles through the appellate court system, the Supreme Court of Canada (SCC) has dismissed the appeal in R v Hutchinson, 2014 SCC 19 [Hutchinson]. Building on the decision in R v Mabior,  2 SCR 584 [Mabior], the Court in Hutchinson further clarified the law surrounding consent to sexual activity, holding that the sabotage of condoms constitutes fraud, which vitiates consent to sexual activity. On the facts, that the complainant subsequently become pregnant was sufficient for a finding that the appellant was guilty of aggravated sexual assault.
Facts of the Case
The facts of Hutchinson were thoroughly covered by TheCourt.ca here and here, prior to the SCC decision. To briefly review, the complainant consented to sexual intercourse with the appellant, with the use of a condom to prevent contraception. However, the appellant, with a view to impregnating the complainant, sabotaged the condom by poking holes in it prior to intercourse. The complainant became pregnant, an undesirable result for her. The sexual assault claim was tried twice before reaching the SCC.
Analysis and SCC Decision
In a 4-3 split of concurring opinions (with significantly different opinions regarding the definition of consent), the SCC upheld the lower appellate court decision that the complainant’s consent to engage in intercourse with the appellant was vitiated by fraud, affirming a conviction of aggravated sexual assault
Consent to sexual activity is to be viewed subjectively, from the point of view of a complainant (R v Ewanchuk,  1 SCR 330). There is a well-established two-step process for analyzing consent to sexual activity, as set out in s. 273.1(1) of the Criminal Code:
(1) determine whether the evidence establishes that there was no “voluntary agreement of the complainant to engage in the sexual activity in question,” and
(2) if the complainant consented or her conduct raises a reasonable doubt about the lack of consent, consider whether there are any circumstances that may vitiate her consent, e.g., absence of consent under s. 265(3) or 273.1(2) (Hutchinson, para 4).
In Hutchinson, there was no doubt in the majority opinion (though the minority opinion fundamentally disagreed) that the complainant voluntarily agreed to the “sexual activity in question,” being intercourse with the appellant. However, this case turned on whether her consent to the sexual activity was vitiated or rendered null as a result of the deception (i.e., poking holes in the condoms, thereby exposing the unknowing complainant to a heightened risk of pregnancy). The Court acknowledged that as established in R v Cuerrier,  2 SCR 371, there are two elements to a circumstance of fraud vitiating consent, under s. 265(3)(c) of the Criminal Code:
(1) dishonesty, which can include the non-disclosure of important facts, and
(2) deprivation or risk of deprivation in the form of serious bodily harm which results from the dishonesty (Hutchinson, para 67).
The appellant argued that after Cuerrier, the threshold for deprivation under s. 265(3)(c) is a “significant risk of bodily harm,” while the Crown argued that a new trial was required to determine whether the risk of pregnancy caused by sabotaged condoms met this same threshold. However, the SCC majority disagreed with both positions, citing an over-reading of Cuerrier. Emphasizing a need to avoid an overly formalistic approach that would turn on semantics and overcriminalize sexual behaviours, it held that although Cuerrier dealt with risk of sexually transmitted infections (STIs), it did not preclude other types of harm as being equally serious deprivations.
With respect to pregnancy in this case, the majority held that depriving a woman of the choice whether to become pregnant is equally as serious as the “significant risk of serious bodily harm” standard set in Cuerrier, sufficing to establish fraud vitiating consent. Further:
the concept of “harm” does not encompass only bodily harm in the traditional sense of that term; it includes at least the sorts of profound changes in a woman’s body — changes that may be welcomed or changes that a woman may choose not to accept — resulting from pregnancy (Hutchinson, para 70).
Effectively, this decision turned on the sexual autonomy of the woman, and her ability to control her own body. The majority found that removing effective birth control without her knowledge is a sufficiently serious deprivation to constitute fraud. However, the inherent risk of pregnancy in any instances of sexual intercourse was not addressed as a policy consideration.
Minority Report: Gender Roles and Sexual Autonomy
This seems to be one of the areas of law in which gender inequality is almost certainly guaranteed, and perhaps justified. As men are not biologically capable of conceiving a child, there is no analogous circumstance to the facts of Hutchinson. The instance of a female similarly sabotaging condoms unbeknownst to a male partner would raise a different set of issues. However, if the woman subsequently became pregnant, it is unclear how the analysis would proceed. If STIs were a live issue, then a Mabior analysis would apply.
All things considered equal, because the issue stated by the majority in Hutchinson is consent, if a deceived male testified that he would not have consented to unprotected sex, then it stands to reason that the law of consent would protect the male. However, the majority of the Court in Hutchinson seems to have anticipated this scenario and implicitly precluded it:
To establish fraud, the dishonest act must result in a deprivation that is equally serious as the deprivation recognized in Cuerrier and in this case. For example, financial deprivations or mere sadness or stress from being lied to will not be sufficient (para 72).
Although it is still subject to debate, a male partner unknowingly impregnating a female partner as a result of sabotaged condoms would not seem to meet the Hutchinson threshold, as the primary argument would be a deprivation of finances or stress. This would certainly not engage the “harm” component of the analysis in an analogous way to a woman being deceived into pregnancy, though the male’s sexual autonomy would still be compromised to some degree. The majority very specifically restricted the threshold for fraud under s. 265(3)(c) in an effort to avoid overcriminalization of sexual behaviours.
Under the minority approach, the definition of “sexual activity” itself is far more broad than the majority’s approach, and would include the presence of an intact condom. The majority avoided this approach as it would create an unnecessarily vague and unclear test, while broadening the scope of criminalization of behaviour. Applying this minority opinion would drastically change the scope of Hutchinson. In the hypothetical scenario above, a deceived male would absolutely have a substantive claim of fraud vitiating consent, as he would have not been consenting to the sexual activity as it took place (falling under the first stage of the two-stage analysis).
While this minority approach would have seen the same result in Hutchinson, it would create an inevitable mess for the lower courts to figure out in future cases. By proceeding as the majority did, the SCC recognized the female’s right to sexual autonomy and the great and broad harm that a pregnancy may pose. However, by crafting the opinion as it did, a floodgate was prevented, and the high threshold for bodily harm or a risk thereof resulting from fraudulent sexual activity was preserved.
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