Posted By Katarina Daniels
On Friday, March 7th, 2014, the Supreme Court of Canada unanimously dismissed Craig Hutchinson’s appeal, holding that Hutchinson did in fact sexually assault his partner when he decided to poke holes in his condoms in order to get his partner pregnant. Immediately, the media responded. Headlines included:
“Supreme Court upholds sexual assault conviction in condom sabotage case” (Mike Blanchfield, The Canadian Press, in the Montreal Gazette)
“Condom case reaffirms the ability to make meaningful choices” (Angela Campbell, The Globe and Mail)
Very few news outlets, however, noted the serious distinction between the majority and minority opinions in how they understand consent. How far does consent reach in the context of sexual relations? Does “voluntary agreement… to… the sexual activity in question” only include the specific physical act or does it extend to how the intercourse takes place? Specific to this case: is sexual intercourse with a condom and without one the same “sexual activity”?
The majority opinion: the sexual activity in question was sexual intercourse
The majority of the Court, led by the Chief Justice and Cromwell J, limited s.273.1(1) of the Criminal Code’s definition of “the sexual activity in question” in consent to the physical act, the sexual nature of the activity, and the identity of the partner. According to the majority, the physical act does not include “conditions or qualities of the physical act” (para 55) but only the “specific physical act,” which includes: “kissing, petting, oral sex, intercourse, or the use of sex toys,” for example (para 54, emphasis in the original).
For its part, this limited definition suggests that, for the purposes of defining the “physical act”, sex without a condom is no different than sex with a condom. The majority makes clear that consent to sexual intercourse, at this first stage of the consent analysis, is consent to any action falling “somewhere within the generic category of what the complainant agreed to” (as described by Abella and Moldaver JJ, para 87). By using this narrow definition of “physical act”, the majority is able to find consent at the first stage of the analysis. A finding of consent, even initially, where the plaintiff insists that there was none, in fact contradicts the headline of Professor Campbell’s article in The Globe and Mail, which reads: “Condom case reaffirms the ability to make meaningful choices”.
Apparently unperturbed by the irony of telling a woman that she has consented to something she argues she has not, the majority moves on to the second stage of the consent analysis – reasons to vitiate consent. Under s.265(3) of the Criminal Code, consent may be vitiated through a number of conditions, including fraud (s.265(3)(c)). Under the test set forth by the Supreme Court of Canada in Cuerrier, a finding of fraud requires: 1) a dishonest act, and 2) that the dishonest act had “the effect of exposing the person consenting to a significant risk of serious bodily harm” (Cuerrier,para 128).
The problem here is that using this line of reasoning creates of a “problematic analogy” between pregnancy and bodily harm. The majority awkwardly holds that harm “includes at least the sorts of profound changes in a woman’s body… resulting from pregnancy” (para 70). The majority must make this uncomfortable statement in order to find fraud, which in turn allows the majority to hold that consent has been vitiated per s.265(3)(c) of the Criminal Code. As a result, Mr. Hutchinson was found guilty of sexual assault under s.265(1) of the Criminal Code.
The minority opinion: the sexual activity in question was sexual intercourse with a condom
In contrast to the majority opinion, the minority opinion, led by Abella and Moldaver JJ, defines the sexual activity in question as sexual intercourse with a condom, as opposed to simply sexual intercourse. Because of this framing, they could find an absence of consent under s.273(1) without relying on fraud and the Cuerrier test, thus coming to the same result as the majority.
Abella and Moldaver JJ rely heavily on R v Ewanchuk, a seminal case outlining the framework for sexual assault findings. In particular, they rely on the following passage: “Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy” (Ewanchuk, para 28).
The minority pounces on the latter element of “how” to justify their definition of “sexual activity” under s.273.1(1). For the minority, this inclusion of the term “how” in Ewanchuk implies that “sexual activity” at s.273.1(1) must be broader than the “specific physical act” and must include the way in which that activity is carried out – in this case, with or without a condom. To hold otherwise would be “[to extinguish] the right of a person to decide whether to give or withhold consent to the sexual activity” (para 86), undermining Ewanchuk’s most basic principles.
Following Ewanchuk, Abella and Moldaver JJ propose a two-part test to analyse consent under the actus reus of sexual assault:
“Under s.273.1(1), has the complainant consented to the identity of her sexual partner, the sexual nature of the touching, and the manner in which the sexual touching was carried out?
If so, are there any circumstances that vitiate the complainant’s consent under s.265(3)?” (para 92)
While the majority suggests that the “how” may be too confusing for judges to apply, resulting in over-criminalization, the minority notes that their approach is the only one that truly gives meaning to the term “consent”. According to the minority, the majority approach would deny individuals who do not risk pregnancy the legal right to demand the use of a condom during sexual intercourse, so long as they agreed to the general activity of sexual intercourse. This is because the majority proposes no other new “harm” under the fraud requirement aside from the “harm” of pregnancy. Per Cuerrier, without serious bodily harm, there can be no fraud.
“All individuals must have an equal right to determine how they are touched, regardless of gender, sexual orientation, reproductive capacity, or the type of sexual activity they choose to engage in” (Abella and Moldaver JJ, para 98).
The majority decision – that is, the ruling decision in this case, the current state of the law – seems to hold otherwise. In relying on vitiation of consent, the majority limits an individual’s right to make meaningful choices for him or herself. This sets a dangerous precedent, and also creates confusion for lower courts in identifying harm under the fraud principle. Media attention must be brought to the actual reasoning of the case, instead of simply the result, as it is the reasoning that will be applied to future cases and continue to shape the laws of consent in Canada.
Note: This blog post does not necessarily reflect the attitudes or opinions of the McGill Journal of Law and Health.
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