Supreme Court Rules Not Wearing A Condom Without Consent Could Be Sexual Assault

Canada's Supreme Court just reviewed a case involving a B.C. man who was initially acquitted of sexual assault after he didn't wear a condom during sex. The court has now ordered a new trial and said that if someone does not wear a condom during sex, without consent, it could be ruled as sexual assault.

In the 5-4 decision, the court ruled that using a condom can be a condition of consent and that if a partner ignores someone's stipulation to use a condom, "the sexual intercourse is non-consensual and their sexual autonomy and equal sexual agency have been violated."

In the case, a B.C. man named Ross McKenzie Kirkpatrick was charged with sexual assault after a woman said that she would only have sex with him if he wore a condom.

According to court documents, Kirkpatrick did use a condom the first time they had sex. The second time the pair had intercourse that night, however, Kirkpatrick failed to wear a condom. It was only after he ejaculated inside of her, that the woman realized he did not wear a condom.

Although he was charged with sexual assault originally, the case went to trial and the judge dismissed it, finding that there was no evidence that the woman had not consented.

After that trial, the Crown appealed to B.C.'s Court of Appeal, which then ordered a new trial. The Court of Appeal found that the first judge shouldn't have dismissed the sexual assault charge, on the basis of a lack of evidence.

Kirkpatrick then appealed to the Supreme Court of Canada, where the case then went, in order to decide if "no, not without a condom" means "yes, even without a condom."

On Friday the Supreme Court dismissed the appeal, and Justice Sheilah L. Martin said that “since only yes means yes and no means no, it cannot be that ‘no, not without a condom’ means ‘yes, without a condom.’”

So now that means that a new trial is needed.