On July 29th 2022, the Supreme Court of Canada made an historic ruling on the 2021 appeal of R. v. Kirkpatrick. The case reaches back to 2017, and ultimately aimed to answer questions about whether or not negotiation of condom use during intercourse informs part of consent. A practice known by the survivors as “stealthing” is when someone is asked to use a condom by the person(s) they are engaging in sexual contact with, and the condom is intentionally removed during intercourse without the knowledge of the other party (or parties). There was a unanimous decision by the court that when consent to sexual intercourse is conditional based on condom use, the condom becomes part of the sexual activity to which the person consented.  The consequence is the conditional consent is revoked when the agreement to condom use is violated. This case, and others like it, set the precedent on building definitions of bodily autonomy, consent, and opens the discussion of rape culture in the context of the criminal legal system. Supreme Court Rulings such as this directly impact the lives of survivors of sexualized violence.

As it stands post-R. v. Kirkpatrick, stealthing is sexual assault, and can be charged as such. Justice Sheilah L Martin explained the justification for this ruling by stating, “when condom use is a condition for sexual intercourse, there is no agreement to the physical act of intercourse without a condom. The condom is part of the sexual activity in question to which a person consented under section 273.1 (1) of the criminal code. Since only yes means yes and no means no, it cannot be that no, not without a condom, means yes without a condom”. 

This ruling was further supported by another Supreme Court decision, R. v. Hutchinson, a case dating back to 2014. The result of this case acknowledges that tampering with the integrity of a condom, or pretending to use one and then removing it during intercourse, nullifies any consent obtained, and is considered sexual assault. Between these two cases, we see the judicial system hinting at principles relating to bodily autonomy, and grounds for being criminally charged where autonomous consent is violated. 

As advocates for survivors of sexualized violence, WAVAW has many concerns about this new ruling and how it will play out in the lives of survivors. We also acknowledge that these rulings exist in reaction to committed harm, and wonder how the judicial system will support the goal of preventing sexualized violence and interrupting rape culture.

To understand the impact of this ruling, we have to speak the truth about the culture we’re living in.

We’re living in rape culture. In short, rape culture is the wide-spread normalization of objectification and degradation of marginalized genders; particularly when it comes to sexualized violence. Rape culture impacts all levels and kinds of relationships, and the communities we are part of.

While we can still celebrate that these rulings have the potential to support survivors who have been impacted by stealthing, we must recognize that the criminal legal system continues to dictate who can make autonomous decisions about reproduction, pleasure, safety, and health. As survivors, we often are denied the opportunity to negotiate condom use. There are countless interactions in our daily lives which seek to undermine our consent, and in the work we do at WAVAW, we are witness to many other direct examples of how rape culture has influenced the legal criminal system, and our own relationships.

• If we are being assaulted by someone we’re in a relationship with, and haven’t used condoms in the past, the request for a condom use can cause violence to escalate. This can be followed by accusations of cheating, or needing an explanation for why things are being changed. 
• If we’re connecting with a person/people and they initially agree to use a condom and then it disappears during the sexual  interaction, rape culture often results in self-shaming for the type of intercourse we’re engaging in, or about where the condom went. “I shouldn’t have agreed to sex with them”, “I didn’t know them well enough and should have been more careful”, “my body failed me and took the condom off”. Rape culture convinces us that we are always the ones responsible for our own safety, this is NOT true. We can only control our own actions and we have the right to decide what happens to our bodies. Those that we are engaging with are also responsible for listening to our needs, and for deciding if they can live up to those needs and communicating if they cannot.  
•  Sex workers carrying condoms might fear being arrested, particularly in spaces and places where sex work is criminalized or stigmatized.  
• As the state continues to criminalize HIV, if an HIV positive person was sexually assaulted without  a condom, the survivor may be the one facing charges of sexual assault. 
•  Survivors seeking to reduce harm during an assault by asking the person(s) violating their consent to use condoms are often seen as consenting to intercourse by the criminal legal system, regardless of the violation of consent.

The ability to negotiate safer sex and access harm reduction is deeply influenced by our access to privilege, and how impacted our lives are by racism, colonization, patriarchy, classism, whorephobia, homophobia, ableism, transphobia, anti-fat bias, and Christian supremacy. Ultimately, these rulings fail to address more nuanced situations of violence and violations of consent that are the direct result of rape culture. 

So, what do we do with this distinction between the current conditions, and the ongoing changes to the judicial system? It is vital to acknowledge that rape culture is the foundation of which we are receiving this decision by the Supreme Court of Canada. Because of the limitations rape culture imposes upon us, when we think about who these decisions will most likely serve, we can assume it will be the most privileged survivors who not only get to access legal criminal justice, if they desire. These survivors are likely to face fewer barriers in legal proceedings, like not needing to prove their request for a condom to be used for their own needs and desires, or having their case handled with more care than other cases.

Sexual assault is conceptualized and investigated through a monogamous, heteronormative, moralistic, and patriarchal lens. Unless those investigating sexual assault as part of the criminal legal system have worked to unravel themselves from their conditioning, their bias will have a very serious impact on the handling of individual cases of violence, regardless of the attitude of the highest Canadian court.

WAVAW averages close to 100 court accompaniments a year. As such, we can attest to how few investigations include direct questions about if safer sex discussions were held prior to the violation of consent, and even fewer inquired about how the discussion impacted the interaction they are investigating. Seldom is there much curiosity about the role of condoms in consent.  The criminal legal system instead historically defaults to conversations about monogamy, attraction, and infidelity in attempts to prove or disprove consent.

While we are hopeful the R. v. Kirkpatrick ruling will support survivors who have been allowed access to the criminal legal system, we are deeply curious if the SCC’s attitude on consent will trickle down to individual investigative practices, as we can clearly see the ongoing impacts of rape culture in our society. Will it give those investigating new concepts of consent; to support evidence gathering in relation to consent and condoms? Will it provide knowledge to survivors and validate our right to bodily autonomy? Will the decision encourage more folks within our sector to discuss the role of consent and condoms within public education? To quote Justice Martin, “since only yes means yes and no means no, it cannot be that no, not without a condom, means yes without a condom”.

We will be watching these various levels of the criminal legal system to see if and how these clarified views on bodily autonomy and consent ripples out to reach the survivors it is intended to.