Canadian Supreme Court set to rule on condom use and consent


PREMO Member
Ross McKenzie Kirkpatrick met the complainant online in 2017 (the complainant's name is protected by a publication ban). The two had sex twice in one night. The complainant said she insisted beforehand that Kirkpatrick wear a condom.

Kirkpatrick wore a condom the first time they had sex but did not the second time. The complainant testified that she thought Kirkpatrick had gotten another condom when he briefly turned to the bedside table.

The complainant testified that she had not consented to intercourse without a condom.

Police charged Kirkpatrick with sexual assault but a B.C. judge acquitted him. The judge said there was no evidence the complainant had not consented and no evidence that Kirkpatrick had acted fraudulently.

In 2020, the British Columbia Court of Appeal unanimously ordered a new trial — but the judges gave different reasons for their decisions.

Two of the judges said that sexual intercourse with a condom is legally distinct from sexual intercourse without one, and that the complainant had not consented to the latter. A third judge said Kirkpatrick defrauded the complainant by not telling her he wasn't wearing a condom.

Kirkpatrick appealed to the Supreme Court, arguing that the appeal court's decision should be thrown out.

Ah she did not look as his talent to ensure he was wrapped ?