The Supreme Court of Canada unanimously affirmed the sexual assault conviction of Craig Hutchinson in an unusual case where the defendant intentionally sabotaged the condom in an effort to impregnate his girlfriend.
The court upheld the defendant’s conviction as it grappled with the issue of deciding whether the victim had consented to having sex with the defendant. The real issue in this case was whether the victim’s consent to have sexual intercourse was vitiated by the fact that she did not agree to have ‘unprotected sex’. The victim was trying to reduce her risk of pregnancy and agreed to have sex on the understanding that a working condom would be used by the defendant. The court held that a condom with pinpricked holes is no longer an effective tool of birth control.
The court held that the victim had voluntarily agreed to the sexual activity in question, but used S.265(3)(b) of the Criminal Code to invalidate the consent obtained from the victim as it was obtained by fraud. The court relied on the landmark decision of Cuerrier and Mabior that dealt with non-disclosure of HIV to a partner to determine whether the consent obtained by the accused was vitiated by fraud.
The court in Cuerrier held that the existence of fraud should not vitiate consent unless there is a serious risk of harm. In other words, existence of fraud alone is not enough to invalidate consent. The court in Mabior explained how the Cuerrier test applies to fraudulent representations about HIV status. The court concluded “that the failure to disclose HIV status will not vitiate consent under s.265(3)(c) of the Criminal Code if (1) the accused’s viral load at the time of the sexual relation was low; and (2) condom protection was used.”
The difficult part to reconcile will be whether this law will be applied the same way to a man whereby the woman falsely represents that she has taken contraceptives in order to dupe the man into having sex with her when the man is trying to avoid impregnating the woman.