Explicit consent needed for unprotected sex, says Canada's top court

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Photo: Blanchi Costela/Getty Images
Photo: Blanchi Costela/Getty Images

A person can be charged with sexual assault for not wearing a condom without a partner's consent during sex, Canada's top court ruled on Friday. The case was decided 5-4.

The court was unanimous in saying Ross McKenzie Kirkpatrick must go on trial for sexual assault for not wearing a condom during sex with a woman who consented only to protected sex. It did not say whether he was guilty of those charges.

Kirkpatrick was initially acquitted of the charges in British Columbia before an appeals court ordered a retrial.

Justice Sheilah Martin wrote in the majority opinion:

Since only yes means yes and no means no, it cannot be that 'no, not without a condom' means 'yes, without a condom'

"Recognising that condom use may form part of the sexual activity in question is also the only way to respect the need for a complainant's affirmative and subjective consent to each and every sexual act, every time," the judgment read.

Kirkpatrick met a woman online and then in person for a possible sexual relationship. They had sex twice in one night in 2017, once with a condom and then again without one, though without the woman's knowledge, according to the complaint.


The complainant said she did not know that he did not use a condom the second time, and if she did, she would not have agreed to it.

Under Canadian law, sexual assault requires proof of a lack of consent to a particular sexual activity in question.

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