Not Wearing a Condom Could Be Sexual Assault, Court Rules

Ignoring a partner's request could bring a criminal conviction, Canadian ruling says
By Bob Cronin,  Newser Staff
Posted Jul 30, 2022 3:15 PM CDT
Canadian Court: Not Wearing a Condom Can Be a Crime
Canada's Supreme Court building in Ottawa.   (Getty Images/BalkansCat)

Refusing to wear a condom during sex after being asked to by a partner could be a crime, the Supreme Court of Canada ruled. In a unanimous decision, the court said pretending to use a condom or taking one off before sex without the partner's consent, sometimes called stealthing, could be a violation of the legal conditions for consensual sex, the CBC reports. That can be grounds for a sexual assault conviction, the court said, finding that consenting to sex with a condom does not confer consent for sex without a condom. "Sex with and without a condom are fundamentally and qualitatively distinct forms of physical touching," Justice Sheilah Martin wrote in the majority decision.

The case was brought by a British Columbia woman who said that she insisted a man wear a condom, and that he agreed before they had sex the first time. The second time they had sex, she said she didn't realize he wasn't wearing a condom, according to the filing. He was acquitted of a sexual assault charge after the judge ruled there was a lack of evidence that the woman had consented to sex with or without a condom. An appeals court ordered a new trial, and the man appealed to the Supreme Court, which upheld that decision Friday.

The executive director of Women's Legal Education and Action Fund called the ruling "an important statement that sexual partners must respect a decision to insist on condom use during sex," per the Washington Post. Pam Hrick said, "This is foundational to the right to sexual autonomy and equality." Lise Gotell, a University of Alberta professor, said that with this ruling, per the New York Times, "In no other jurisdiction in the world is it as clear that when someone has agreed to sex with a condom, and removed it without their consent, this constitutes sexual assault or rape." (More condoms stories.)

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