the non-consensual removal of a condom during intercourse is recognized as potential sexual assault

This is a landmark decision from Canada’s highest court. If a person is required by their partner to wear a condom during sex but fails to do so, they can be convicted of sexual assault, the Supreme Court of Canada ruled in a 187-page decision that was released on Friday July 29.

The court was arrested last November in the context of a case that arose in British Columbia. The plaintiff agreed to have sex with the accused, but only if he wore a condom, which they had previously agreed upon. If in the first report the man was wearing a condom, he did not put it on the second time, pretending to turn to his bedside table to take it, which his partner only knew. “Shocked and Confused”the young woman was told by her companion that she “can have an abortion” if she gets pregnant and “People can now live with infections like HIV, chlamydia and gonorrhea”.

The man finally testified through the message that he felt “so excited” to put a condom, that the idea that it may constitute sexual assault is “very funny”, before sending him a pornographic video titled “Oh my God, daddy came inside me” and to sacrifice him “to explode” in a group of his friends. Afterwards, the young woman followed a preventive treatment against HIV for twenty-eight days, with severe side effects.

For the first time, the judge dismissed the charge of sexual assault, arguing that the complainant consented to a sexual relationship, even without a condom. But the British Columbia Court of Appeal ordered a new trial. The defendant then asked the Supreme Court to rule, which therefore ruled in favor of the plaintiff.

“Yes only means yes and no means no”

On behalf of the Supreme Court Justices, Sheilah L. Martin said that if condom use is a condition of intercourse, “There is no permission to have physical intercourse without a condom ». Condoms are part of“sexual activity” on the question that the person agrees with. According to the Supreme Court, the plaintiff gave evidence that he would not have had sex with the accused without protection. “Because yes only means yes and no means no, ‘no, not without a condom’ can’t explain “Yes without a condom” »wrote Judge Martin.

“There is also some evidence that the plaintiff’s express consent may have been fraudulently denied”determined the court in its decision, and added that“There is at least some evidence of dishonesty through loss and risk of deprivation due to the risk of pregnancy. Therefore, a new trial must be conducted. »

In October 2021, California became the first US state to criminalize the non-consensual removal of a condom during sex, also known as theft. Increasingly criticized, it remains rarely punishable by law around the world.

the theft renewal “a consensual sexual relationship in a non-consensual relationship” and so “experienced by many as a serious violation of dignity and autonomy”famous lawyer Alexandra Brodsky in an article published in 2017 in Columbia Journal of Gender and Law, which helped publicize this work in the United States. mME Brodsky points to the availability of online forums that offer advice on how to remove a condom without his partner knowing. Some have been closed.

In January 2017, a Frenchman accused of this practice was sentenced by a court in Lausanne, Switzerland, for rape, to twelve months in prison, suspended, a sentence confirmed on appeal, but reclassified as“act of a sexual nature committed against a person without the ability to recognize or resist”.

In Sweden, Julian Assange, the founder of WikiLeaks, was accused by a woman of having sex in August 2010 while he was sleeping and without a condom, when he refused her any unprotected sex on several occasions, which he always refused. . denied. The prosecution dropped the charges in 2019.

Read the column: Article reserved for our subscribers “We demand a strong criminal policy on sexual violence”

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