The story of a little prick

The country’s highest court has ruled that if your partner consents to sexual intercourse with protection, and then you tamper with the condom in some way, you are guilty of sexual assault:

The Supreme Court of Canada has dismissed an appeal by a Nova Scotia man who was convicted of sexual assault for poking holes in his girlfriend’s condoms.

The case involved Craig Jaret Hutchinson, who was sentenced to 18 months in jail in December 2011, after he admitted damaging his former girlfriend’s condoms in an attempt to impregnate her so that she would not end their relationship.

While the Supreme Court’s decision to dismiss the appeal was unanimous, the seven justices were divided into two camps in their reasons for the decision.

The majority ruled that Hutchinson’s decision to sabotage the condom exposed his girlfriend to an increased risk of pregnancy and constituted fraud.

“We conclude that there was no consent in this case by reason of fraud,” the judges wrote in their decision.

The three other judges wrote that the question in the case was not whether the girlfriend’s consent was “vitiated,” or invalidated, by fraud, but whether the girlfriend had consented to “how” the sex had taken place.

[...]

The court was also clear that merely deceiving a sexual a partner — for example, by lying about one’s marital status – would not be enough to warrant a sex assault conviction.

The justices writing for majority noted that their decision recognizes that not every deception “that induces consent” should be criminalized.

“To establish fraud, the dishonest act must result in a deprivation that is equally serious as the deprivation” in this and similar cases, they wrote.

Full decision here.  The ruling makes sense to me – in this case, while the woman consented to sex, she clearly had not consented to it being carried out in such a potentially harmful manner.  (She became pregnant, chose to terminate the pregnancy and then wound up with a uterine infection.)

The question is, if this were the other way around – if the female partner somehow tampered with the condom, in the hopes of surreptitiously getting pregnant – is there any reason why she wouldn’t be guilty of sexual assault?  What if she said she was unable to have children, or lied about being on birth control?  What if the male partner lied about being sterile?  It will be interesting to see how this case is applied.

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About Damian P.

Lawyer with Bedford Law, Bedford, Nova Scotia.
This entry was posted in Criminal Law, Supreme Court of Canada and tagged , , . Bookmark the permalink.

One Response to The story of a little prick

  1. Bruce says:

    Given the incentives, and anecdotal evidence, I suspect the more common scenario is a woman going off of birth control without informing her partner. I can see a court finding the woman guilty of sexual assault, but awarding her custody and requiring the man to pay child support — as has happened in the rare case in which a woman was convicted of raping an underage male. (I’m thinking of the Jane C. Crane case, but there are others.) It would be interesting to see a few test cases.

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