The Supreme Court of Canada has dismissed an appeal by a Nova Scotia man who was convicted of sexual assault for poking holes in his girlfriend's condoms.
The case involved Craig Jaret Hutchinson, who was sentenced to 18 months in jail in December 2011, after he admitted damaging his former girlfriend’s condoms in an attempt to impregnate her so that she would not end their relationship.
While the Supreme Court’s decision to dismiss the appeal was unanimous, the seven justices were divided into two camps in their reasons for the decision.
The majority ruled that Hutchinson’s decision to sabotage the condom exposed his girlfriend to an increased risk of pregnancy and constituted fraud.
“We conclude that there was no consent in this case by reason of fraud,” the judges wrote in their decision.
The three other judges wrote that the question in the case was not whether the girlfriend’s consent was “vitiated,” or invalidated, by fraud, but whether the girlfriend had consented to “how” the sex had taken place.
Court heard during trial that the former girlfriend, whose identity is protected, had repeatedly told Hutchinson that she did not want a pregnancy. Hutchinson attempted to get her pregnant in hopes that she would not break up with him.
The girlfriend did become pregnant and the relationship ended shortly after. Hutchinson continued to contact his ex-girlfriend over the following weeks through texts and revealed what he had done to her condoms.
She chose to have an abortion, which left her with a uterine infection that was eventually treated with antibiotics.
The Canadian HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario also intervened in the case. Both groups carefully watched the decision to see how it might impact those who fail to disclose their HIV-positive status to their sexual partners.
The high court has ruled that not disclosing HIV status is not grounds for a sexual assault conviction -- as long as the risk of transmission is low.
Boris Bytensky of CrimLawCanada.com says Friday’s decision is “quite consistent” with the court’s previous rulings on the matter.
“What the court said in that scenario is that you only have to disclose your HIV status if there’s a risk of harm. So in other words, it would depend on their viral load and on whether condoms are used. But without a risk of harm, you don’t have to disclose,” he told CTV News Channel after the ruling.
The court was also clear that merely deceiving a sexual a partner -- for example, by lying about one’s marital status – would not be enough to warrant a sex assault conviction.
The justices writing for majority noted that their decision recognizes that not every deception “that induces consent” should be criminalized.
“To establish fraud, the dishonest act must result in a deprivation that is equally serious as the deprivation" in this and similar cases, they wrote.
"For example, financial deprivations or mere sadness or stress from being lied to will not be sufficient,” they wrote.
