The Supreme Court of Canada ruled Friday that “stealthing” — pretending to use a condom, or secretly removing it before sex without a partner’s consent — can violate the legal definition of consensual sex.
“Sex with and without a condom are fundamentally and qualitatively distinct forms of physical touching,” Justice Sheilah Martin wrote in the majority decision.
“A complainant who consents to sex on the condition that their partner wear a condom does not consent to sex without a condom.” There is “no agreement to the physical act of intercourse without a condom,” she added.
Women’s rights advocates hailed the decision. Pam Hrick, executive director of Women’s Legal Education and Action Fund, called the ruling “foundational to the right to sexual autonomy and equality.”
It was a dramatic contrast to the U.S. Supreme Court’s decision last month to scuttle Roe v. Wade, dropping decades of protection for women’s right to an abortion. “Stealthing” becomes even more ominous for women in America now where a case of accidental pregnancy could become a lifelong mandatory commitment to a child.
California last year became the first state in America to make “stealthing” illegal. Nonconsensual condom removal is now the civil offense of sexual battery under state law, which allows victims to sue offenders for damages.
The condom ruling in Canada was in response to an appeal in the case of a British Columbia man who did not wear a condom during sex, even though his partner said she had insisted beforehand that he wear one. She testified that she did not consent to sex with him without a condom.
Police charged the man with sexual assault, but a judge acquitted him, saying there was no evidence the complainant had not consented and no evidence that he had acted fraudulently.
The British Columbia Court of Appeal in 2020 unanimously ordered a new trial, and that ruling was appealed to the Supreme Court by the accused man.
The Supreme Court’s decision made no determination about guilt or innocence in the case, but simply ordered a new trial in the case in light of the new interpretation about condom use.