America has been struggling with the entire “affirmative consent” question when it comes to sexual activity for quite a few years now. Questions of defining when “yes means yes” or “yes turns into no” have spurred debates that continue to this day. But as usual, Canada is jumping in with both feet and turning the dials up to eleven. The country’s highest court has now ruled that any man who agrees to use a condom during sex but then either doesn’t use one or removes it without his partner’s agreement is guilty of sexual assault or rape. This decision is of particular interest to a Canadian man named Ross McKenzie Kirkpatrick. He was the first person charged under this particular concept. A lower court dismissed the charges, but now he will be returning to court to defend himself against charges of rape or sexual assault. (NY Times)

It is a crime to renege on a promise to wear a condom during sex without a partner’s knowledge or consent, the Supreme Court of Canada ruled this week.

The decision sends a British Columbia man back to trial for sexual assault, and sets legal precedent in Canada, further clarifying the law governing sexual consent in a country that has been raising the bar for it for decades.

“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,” said Lise Gotell, professor of women’s and gender studies at the University of Alberta, and an expert on sexual consent and Canadian law.

It seems to me that there’s no question that making an agreement to use protection during consensual sex and then either skipping it or removing it without telling the other person is unambiguously wrong. The potential for unintended pregnancy or the transmission of an STD (or these days, monkeypox) should be obvious and any sort of negative outcome should be blamed on the person who broke the agreement.

But does that really constitute rape or sexual assault? That’s a bit more of a complicated question, at least under United States law. Both of those terms describe a situation where sexual activity took place without the consent of one of the people involved. (Almost always the woman, of course, though I’m not a biologist.) In the scenario being described here, consent to sexual activity was given. If the man removed the condom surreptitiously then he was clearly engaged in deception. But I find myself hard-pressed to suggest a specific law that was being broken.

If a pregnancy resulted from the encounter, applicable paternity laws would kick in with associated financial responsibilities ensuing. If the male who removed or failed to use a condom caused his partner to contract an STD, there are some laws in place covering that scenario. They vary from state to state, however. In New York, for example, it’s illegal to not disclose the fact that you have an STD to a prospective sexual partner, but it’s only a misdemeanor.

Of course, all of these scenarios rely heavily on the word “knowingly.” What if the man who agreed to use a condom did put one on but it came off during intercourse without either he or his partner noticing? (I seem to recall that used to be a thing that happened sometimes.) Without intent, there shouldn’t be a crime. And even if it was an act of willful deceit, there’s a significant difference between being charged with that and taking a rape charge, right?

I remain unsure, but it sounds as if Canada is once again going a bit overboard on this. We have rape and sexual assault laws for very good reasons and they need to be strictly enforced. But they also need to be clearly defined. This ruling from Canada’s highest court sounds as if they are muddying the waters in a potentially harmful fashion.