Court decision clarifies meaning of consent

Hey there, time traveller!
This article was published 15/08/2022 (1497 days ago), so information in it may no longer be current.

Pretending to use a condom, or removing it without a partner’s knowledge — also known as “stealthing” — is, most reasonable people would surely agree, a shameful act.

Now, according to the Supreme Court of Canada, it could be a criminal one.

Last month, the nation’s top court ruled stealthing violates the legal definition of consent. “Sex with and without a condom are fundamentally and qualitatively distinct forms of physical touching,” Justice Sheilah Martin wrote in the majority decision regarding the reasons the court ordered a new trial for a British Columbia man who was charged with sexual assault after engaging in sex without a condom despite his partner’s insistence he wear one.

“A complainant who consents to sex on the condition that their partner wear a condom does not consent to sex without a condom.”

The man was acquitted by a B.C. court, but that province’s appeal court ordered a new trial. His appeal to the Supreme Court was dismissed unanimously, but the judges were split 5-4 on the reasons for the dismissal.

It’s a landmark decision that could set a legal precedent when it comes to consent and sexual assault.

For years, advocates and legal experts alike have been sounding alarms about stealthing, perhaps most notably American civil rights attorney Alexandra Brodsky, who wrote a widely cited 2017 Columbia Journal of Gender and Law report with an attention-grabbing title: “‘Rape-Adjacent’: Imagining Legal Responses to Nonconsensual Condom Removal.”

In it, Ms. Brodsky suggests a civil remedy as opposed to a criminal remedy, pointing out that many victims may not want to pursue criminal charges because few of them ever see justice in a criminal courtroom, or because the process is revictimizing. Sexual assault remains underreported.

What Canada’s ruling does is put both clear language and law around an act that is too often dismissed or downplayed, owing in no small part to the persistent rape myths that sexual assault doesn’t happen between romantic partners, or that rapists are always random attackers in back alleys.

Even the term “stealthing” seems too pithy for what it describes. There are emotional and physical harms that come with unprotected sex, including sexually transmitted infections and unwanted pregnancy.

In 2021, California was the first U.S. state to pass a law making stealthing a civil offence, and Australia is also following Canada’s lead.

According to the BBC, stealthing is considered rape under U.K. law, but there has only been one successful prosecution.

Stealthing laws necessarily open a vital conversation about consent. Affirmative consent — defined as explicit, informed, and voluntary — should be part of sexual education curriculums, as well as figuring prominently in “the talk” at home. When sex is treated as something taboo or shameful, or as something that’s done for pleasure as opposed to strictly for procreation, the consent piece is often absent from the discussion, even though it should be the cornerstone.

A 2015 study by the Canadian Women’s Foundation found only one in three Canadians knew what consent meant, and that one in 10 Canadians “believe consent is not required or don’t know if it’s required between spouses (12 per cent) or long-term partners (11 per cent).”

It remains to be seen whether the Canadian law will carve a clearer path to justice and embolden more victims to come forward by affirming that what they experienced was, indeed, a violation of consent — and whether law enforcement will be trained to deal with such complaints.

But its very existence is an encouraging sign, one that could potentially change how our society understands consent.