The Supreme Court of Canada holds that where condom use is a condition of the complainant’s consent to the sexual activity in question, it will form part of the sexual activity in question and the consent analysis under section 273.1 of the Criminal Code of 1985 on aggravated sexual assault
K v Her Majesty The Queen and 7 Others
2022 SCC 33
Supreme Court of Canada
Wagner, CJ & SCJ; Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal, SCJJ
July 29, 2022
Reported by Faith Wanjiku and Bonface Nyamweya
Criminal law-offences- sexual assault- consent- where the complainant consented to sexual intercourse on condition that the accused wore a condom- where the complainant realized after intercourse that the accused failed to wear a condom -what analytical framework applied when a complainant agreed to sexual intercourse only if the accused wore a condom, and he instead chose not to wear one— whether condom use formed part of the sexual activity to which a person could provide voluntary agreement- whether condom use was always irrelevant to the presence or absence of consent, meaning that there was consent but it could be vitiated if it rose to the level of fraud- Criminal Code, R.S.C. 1985, sections 265(3)(c) and 273.1(1)(2).
Criminal law-offences- sexual assault- stealthing- what was stealthing in relation to sexual offences.
The complainant testified that she and K met online and then in person to determine if they wanted to have sex with each other. The complainant made it clear to K that she would only agree to have sex with him if he wore a condom. Despite that, during their second episode of intercourse, K did not wear a condom. The complainant only realized that K had not been wearing a condom after he ejaculated inside her. Based upon those events, K was charged with sexual assault.
K applied to have the charge dismissed by bringing a no-evidence motion. He argued that the Crown failed to prove the absence of the complainant’s consent based on the court’s decision in R v Hutchinson, 2014 SCC 19,  1 SCR 346, which set out a two-step process for analyzing consent. At the first step, the question was whether the complainant consented to engage in the sexual activity in question under section 273.1(1) of the Criminal Code, which was defined by reference to the specific physical sex act involved. If the complainant consented, or her conduct raised a reasonable doubt about her consent, the second step was to consider whether there were any circumstances under section 265(3) or section 273.1(2)(c), including fraud, that vitiated her apparent consent.
Fraud under section 265(3)(c) required proof of the accused’s dishonesty, which could include non-disclosure, and a deprivation in the form of significant risk of serious bodily harm from that dishonesty. K argued that the complainant’s agreement to sexual intercourse was enough to establish consent to the sexual activity in question, as she consented to all the physical acts the parties engaged in, and there was no evidence that that consent was tainted by fraud. The trial court granted K’s no-evidence motion and dismissed the sexual assault charge. The Court of Appeal unanimously allowed the Crown’s appeal, set aside the acquittal and ordered a new trial. However, the Court of Appeal was split on the reasoning as to which Criminal Code provision applied in examining consent: section 273.1(1) or section 265(3)(c). K appealed to the Supreme Court from the setting aside of his acquittal.
i. What analytical framework applied when a complainant agreed to sexual intercourse only if the accused wore a condom, and he instead chose not to wear one?
ii. Whether condom use formed part of the sexual activity to which a person could provide voluntary agreement.
iii. Whether condom use was always irrelevant to the presence or absence of consent, meaning that there was consent but it could be vitiated if it rose to the level of fraud.
iv. What was stealthing in relation to sexual offences?
Relevant provisions of law
Criminal Code, RSC 1985
Section 265(3)(c)- Consent
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of-
Section 273.1 (1)-Aggravated sexual assault
Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.
Section 273.1 (2)
(2) Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable-
(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(a.2) if the complainant is under the age of 16 years, to imprisonment for life and to a minimum punishment of imprisonment for a term of five years; and
(b) in any other case, to imprisonment for life.
Held by majority
- When consent to intercourse was conditioned on condom use, the only analytical framework consistent with the text, context and purpose of the prohibition against sexual assault was that there was no agreement to the physical act of intercourse without a condom. Sex with and without a condom were fundamentally and qualitatively distinct forms of physical touching. A complainant who consented to sex on the condition that their partner wore a condom did not consent to sex without a condom. That approach respected the provisions of the Criminal Code, the court’s consistent jurisprudence on consent and sexual assault and parliament’s intent to protect the sexual autonomy and human dignity of all persons in Canada.
- Since only yes meant yes and no meant no, it could not be that no, not without a condom meant yes, without a condom. If a complainant’s partner ignored their stipulation, the sexual intercourse was non-consensual and their sexual autonomy and equal sexual agency had been violated.
- The complainant gave evidence that she had communicated to the appellant that her consent to sex was contingent on condom use. Despite the clear establishment of her physical boundaries, the appellant disregarded her wishes and did not wear a condom. That was evidence of a lack of subjective consent by the complainant — an element of the actus reus of sexual assault. The trial court erred in granting the appellant’s no evidence motion.
- In the early 1980s, parliament modernized and fundamentally restructured the Criminal Code provisions on sexual offences. It repealed discriminatory evidentiary rules and moved away from prior specific provisions, like the prohibition against rape, to instead adopt prohibitions grounded in the law of assault. That change reflected the shift away from categorizing sexual offences based on the nature of the sexual act and the perceived chastity of the victim, and toward an understanding that treated sexual assault much more like other crimes of violence.
- The foundational nature of consent to the offence of sexual assault was demonstrated in its centrality to both the actus reus and the mens rea elements of the offence. The actus reus of the offence was unwanted sexual touching, while the mens rea was the intention to touch, knowing, being reckless of, or being willfully blind to a lack of consent from the person being touched. For the actus reus, the absence of consent was entirely subjective and dependent on the complainant’s state of mind about whether they wanted the touching to take place at the time it occurred. There was no need to inquire into the accused’s perspective at the actus reus stage.
- The legal meaning given to the sexual activity in question could not be narrowly drawn or fixed for all cases. Like the consent of which it was part, it was tied to context and could not be assessed in the abstract; it related to particular behaviors and actions. Much would depend on the facts and circumstances of the individual case. Touching would be defined by the evidence and the complainant’s allegations. The sexual activity in question would emerge from a comparison of what actually happened and what, if anything, was agreed to. That was bound to change in every case.
- Condom use could form part of the sexual activity in question because sexual intercourse without a condom was a fundamentally and qualitatively different physical act than sexual intercourse with a condom. The physical difference was that intercourse without a condom involved direct skin-to-skin contact, while intercourse with a condom involved indirect contact. That difference, of a changed physical experience, was put forward by some men to explain why they preferred not to wear a condom.
- Consent to a form of touching could depend on what was being used to touch the body because the law appreciated there was a physical difference between being touched by a digit, penis, sex toy or other object. It was also clear, for example, that the law saw different specific physical sex acts when a person who had obtained consent to touch a woman’s chest over her clothing instead reached underneath her clothing to make direct skin to skin contact with her bare breast. Being touched by a condom-covered penis was not the same specific physical act as being touched by a bare penis. Logically and legally, direct and unmediated sexual touching was a different physical act than indirect and mediated contact.
- Parliament specified situations where no consent would be obtained in relation to sexual assault offences in section 273.1(2). Section 273.1(2)(d) and (e) in particular provided that there could be no consent if the complainant expressed, by words or conduct, a lack of agreement to engage in the activity or, having consented to engage in sexual activity, expressed a lack of agreement to continue to engage in the activity. While a complainant was not required to express her lack of consent for the actus reus to be established, when she did so it was directly relevant to whether or not there was subjective consent to the sexual activity in question and could also impact whether a mistaken belief in consent could be reasonable under the mens rea analysis.
- Voluntary agreement to sex with a condom could not be taken to imply consent to sex without one as consent could not be implied from the circumstances or the relationship between the accused and the complainant. Nothing substituted for the complainant’s actual consent to the sexual activity at the time it occurred, which involved the conscious agreement of the complainant to engage in every sexual act in a particular encounter. A complainant had to agree to the specific sexual act since agreement to one form of penetration was not agreement to any or all forms of penetration and agreement to sexual touching on one part of the body was not agreement to all sexual touching.
- An accused could not ignore limits or test the waters during a second episode of intercourse to see if the complainant then consented to sex without a condom as consent had to be specifically renewed and communicated for each and every sexual act. Implying consent revived the mythical assumptions that when a woman said ‘no’ she was really saying ‘yes’, ‘try again’, or ‘persuade me’.
- Placing required condom use outside the core definition of consent under section 273.1 would undercut those principles and undermine parliament’s goals. Too narrow a reading of sexual activity would deem a complainant to have consented in law when they did not subjectively agree to sex without a condom in fact. For some people —the difference between using a condom or not meant the difference between subjectively agreeing to the activity or refusing it. To ignore express physical boundaries when defining consent under section 273.1 effectively repealed the need for subjective and affirmative consent.
- Deeming the complainant’s consent to intercourse without a condom, after she had specifically rejected that form of touching, came close to reinstating the rejected doctrine of implied consent. Recognizing that when the complainant agreed to sexual intercourse with a condom, she was not agreeing to the different physical act of direct skin to skin contact without a condom was precisely what the court protected when it stated that having control over who touched one’s body, and how, lay at the core of human dignity and autonomy.
- Non-consensual condom refusal or removal involved a range of conduct employed to avoid using a condom with a partner who wanted to use one. That included the refusal to use a condom in the first place, whether the accused informed the complainant of their refusal or not. It also covered cases of stealthing, where the accused pretended to have put on a condom or secretly removed it. There were many forms of condom use resistance and they could involve using physical force, manipulation, threats and deception to obtain unprotected sex.
- Non-consensual condom refusal or removal was experienced as and recognized as a form of sexual violence which generated various forms of harm. There were clear physical risks, but the psychological consequences were also very real. Women who had experienced non-consensual condom refusal or removal had been found to develop negative self-perception about their sexual agency and sometimes themselves.
- Victims of non-consensual condom refusal or removal described it as a disempowering, demeaning violation of a sexual agreement, a violation of consent, a betrayal of trust, a denial of autonomy, and an act of sexual violence. As with other forms of sexual coercion, the risk of experiencing non-consensual condom refusal or removal was not distributed equally throughout the population. The power dynamic it rested on was exacerbated among vulnerable women, including women living in poverty, racialized women, migrant women, and among people with diverse gender identities and sex workers.
- The sexual activity in question, properly interpreted, was sufficiently broad to capture physical aspects that were crucial to the complainant’s agreement to the specific touching in the first place. The determination of whether no consent had been given to the distinct physical act of unprotected skin-to-skin sex should not depend on the manner in which a person’s consent had been violated. In cases of condom refusal or removal, the fraud analysis drew attention away from the foundational principles of consent, focused attention elsewhere, and created gaps in coverage antithetical to parliament’s intention to address the rights, realities and harms of sexual violence.
- R v Hutchinson, 2014 SCC 19,  1 SCR 346, (Hutchinson) was a classic case of deception in which the accused deliberately made holes in the condom hoping that pregnancy would result. It simply held that cases involving condom sabotage and deceit should be analyzed under the fraud provision rather than as part of the sexual activity in question in section 273.1. Read properly, and consistently with well-established principles for stare decisis, Hutchinson was chiefly concerned with the delineation of deception under the criminal law.
- Hutchinson did not establish the sweeping proposition that all cases involving a condom fell outside section 273.1 and could only be addressed, if at all, when the conditions of fraud were established. As the new case at bar demonstrated, condom use was not always collateral or incidental to the sexual activity in question. Conditioning agreement to sexual touching on condom use went to the heart of the specific physical activity in question and the existence or non-existence of subjective consent, and there was no need to resort to the doctrine of fraud and its stringent legal requirements in that circumstance. Hutchinson thus remained binding authority for what it decided, but it did not apply to when the accused refused to wear a condom and the complainant’s consent had been conditioned on its use.
- Recognizing that condom use could be part of the sexual activity in question was not an expansion of section 273.1 and did not offend the principle of restraint in criminal law. Parliament had stated repeatedly that it was criminally reprehensible conduct to impose an unconsented-to sexual act on an unwilling or unwitting victim. Non-consensual condom refusal or removal was a form of sexual violence that generated harms and undermined the equality, autonomy, and human dignity of complainants. It was not simply undesirable behaviour.
- There were also no vagueness or certainty concerns if condom use, including non-consensual condom refusal or removal, was seen as part of the sexual activity in question. Asking whether a condom was required and if so, whether one was used had the necessary certainty to prevent over-criminalization. While restraint was an important criminal law principle, it did not override parliament’s countervailing imperative of enacting sexual assault laws that respected the rights and realities of those subjected to such violence. Excluding such physical aspects from the sexual activity in question would leave an avoidable and undesirable gap in the law of sexual assault, where certain violations of a complainant’s physical integrity and equal sexual agency were demoted as less worthy of protection. That ran contrary to the fundamental principle that a complainant’s motives for only agreeing to sex with a condom were irrelevant.
- The complainant’s evidence was clear that she would not consent to having sex with the appellant without a condom, but the appellant nevertheless chose to engage in sexual intercourse without one. Therefore, there was some evidence that the complainant did not subjectively consent to the sexual activity in question. The trial judge erred in concluding otherwise.
Per Wagner CJ & SCJ; Côté, Brown and Rowe SCJJ (Partly Dissenting)
- Hutchinson squarely applied to the case at bar. It held that condom use was not part of the sexual activity in question contemplated in section 273.1(1) of the Criminal Code. When a person agreed to have sex on the condition that their partner wore a condom, but that condition was circumvented in any way, the sole pathway to criminal liability was the fraud vitiating consent analysis under section 265(3)(c). Applying Hutchinson to the present case, there was some evidence that the complainant consented to the sexual activity in question, but a new trial was required to determine whether her apparent consent was vitiated by fraud.
- Distinguishing Hutchinson on the basis of no condom versus sabotaged condoms obscured the bright line of criminality established in Hutchinson. By arguing that the Hutchinson majority referred only to effective condom use, the majority in the instant case introduced needless uncertainty into the criminal law. It followed from the foregoing that the majority’s attempt to distinguish Hutchinson, in substance, effected an overturning of that precedent. Hutchinson conclusively determined the meaning of the sexual activity in question under section 273.1(1) as excluding all forms of condom use, not only condom sabotage.
- Even if Hutchinson was unworkable or if its precedential foundation had eroded, there were at least two compelling reasons to uphold it. First, overturning Hutchinson would raise concerns regarding the retrospective expansion of criminal liability. Second, overturning Hutchinson could lead to unforeseeable consequences. Suddenly re-orienting the law to expand the scope of consent would be a major legal change engaging potentially wide-reaching policy issues. Hutchinson therefore governed the case at bar, such that the two-step fraud vitiating consent analysis under section 265(3)(c) was engaged, rather than the consent analysis under section 273.1(1).
Appeal dismissed; order of the Court of Appeal for British Columbia setting aside the acquittal and ordering a new trial upheld.
Relevance to Kenyan jurisprudence
The Constitution of Kenya 2010 in article 28 highlights the aspect of human dignity when it notes that every person has inherent dignity and the right to have that dignity respected and protected. Moreover, article 29 stresses that a person should not be treated in a cruel and degrading manner. Article 32 pinpoints the freedom of conscious as it says that a person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion.
Mohammed Yusuf in the Voice of America English News of August 24, 2020, brings to our attention that:
Kenya’s Ministry of Health says it has received reports of at least 5,000 sexual violence cases across the country, 65% of them involve girls younger than 18, many of whom live in poverty. Officials say in many cases the perpetrators are close to the victims and do not believe the abuse is a crime. Unlike other sexual offences, “Stealthing is a disturbing new sex trend where men remove their condom without consent during sexual intercourse.” Section 43 of the Sexual Offences Act 2006 defines intentional and unlawful acts when it states that:
(1) An act is intentional and unlawful if it is committed-
(b) under false pretenses or by fraudulent means;
(3) False pretenses or fraudulent means, referred to in subsection (1)(b), include circumstances where a person-
(b) in respect of whom an act is being committed, is led to believe that such an act is something other than that act;
Section 45 further adds that:
(1) If in proceedings under this Act it is proved that the accused person committed any offence and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed –
(a) that the complainant did not consent to the commission of that act; and
(b) that the accused person did not believe that the complainant consented to the act being complained of.
(2)The circumstances are that –
(a)the accused person intentionally deceived the complainant as to the nature or purpose of the act complained of;
Section 124 of the Evidence Act
makes clear the aspect of evidence in sexual offences when it notes:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.
In Wanjala v Republic (Criminal Appeal 1 of 2019)  KEHC 10671 (KLR) (6 May 2022) (Judgment), the High Court upheld the ruling of the trial court while dismissing the appeal and noted that:
When the complainant testified she took the court through how the relationship with the appellant began. She testified that the appellant was her boyfriend. She also testified that it is the appellant who approached and seduced her. That they engaged in unprotected sexual acts severally after he had taken her from her home. The complainant clearly described how the appellant put his penis into her vagina and that he did not use a condom.
Furthermore, the court in RMK v Republic  eKLR set aside the sentencing by the trial court and pointed out that:
The complainant was found to be HIV positive on 6th February 2015 and the clinical officer said it was difficult to tell when indeed she contracted the virus. The appellant was tested positive on 13th April 2015. So, if the appellant defiled the complainant on 26th December 2014, is it possible that by 6th February 2015 the HIV test on the complainant would have been viable? According to the clinical officer, the HIV test would have been viable three (3) months after the first contact. Between 26th December 2014 and 6th February 2015 was one (1) month and eleven (11) days. If indeed the only corroborating evidence that indeed the appellant had sexual intercourse with the child and infected her with HIV, is the child’s HIV status, then, clearly that evidence is questionable and inconclusive to say the least.
This case is therefore important as it expands the Kenyan jurisprudence on stealthing as a sexual offence by noting that where condom use is a condition of the complainant’s consent to the sexual activity in question, it will form part of the sexual activity.
 https://allafrica.com/stories/201705100724.html [September 29, 2022].