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Supreme Court rules condom use can be a condition of consent in sexual assault cases

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OTTAWA — The Supreme Court of Canada says sex with a condom is a fundamentally different physical act than sex without one, and that the use of a condom can be a condition of consent under sexual assault law.

In a 5-4 decision Friday, the top court ruled that if a complainant’s partner ignores the condition that a condom be used, the intercourse is non-consensual and the complainant’s autonomy and equal sexual agency have been violated.

“When a complainant states: ‘no, not without a condom,’ our law of consent says, emphatically, this actually means ‘no,’ and cannot be reinterpreted to become ‘yes, without a condom,’” the decision says.

The court has ordered a new trial in a British Columbia case in which a complainant told a new sexual partner, Ross McKenzie Kirkpatrick, that she would only have sex if he wore a condom.

The fact Kirkpatrick used a condom the first time they had sex led the complainant to assume that he was already wearing one when he initiated sex for a second time, she told the court — but he wasn’t, which she said she did not realize until he ejaculated.

A sexual assault charge against Kirkpatrick was dismissed by a judge who found there was not enough evidence to proceed with a trial.

In applying the existing two-part test to determine whether consent has been violated in sexual assault cases, the judge found that there was no evidence the complainant had not consented to “the sexual activity in question,” the intercourse itself, nor was there evidence the defendant was explicitly deceitful, which would have undermined consent.

Although the reasons for its decision are split, the Supreme Court unanimously agreed with the B.C. Court of Appeal’s decision that the trial judge erred in the finding of no evidence.

The judge had relied on a 2014 Supreme Court decision, R. v. Hutchinson, which concerned the use of deliberately sabotaged condoms.

In that case, the accused, Craig Hutchinson, confessed to sabotaging condoms he used with his girlfriend because he wanted to have a child with her. The complainant, who did not want to have a child, nonetheless got pregnant and ultimately had an abortion.

Hutchinson was charged with aggravated sexual assault, but a trial judge dismissed the charge and the case went up the appeals chain.

A majority of Supreme Court justices concluded in the Hutchinson case that consent to the “sexual activity in question” does not include “conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases.”

They said that instead, such cases should be decided using the second part of the test, which asks whether there has been dishonesty on the part of the accused, and whether the complainant has incurred significant risk of bodily harm. On that basis, they ordered a new trial.

The decision has been long criticized by feminist and legal groups who say that it is a matter of common sense that sex with a condom is different than sex without one.

The attorneys general of Alberta and Ontario joined with advocacy groups in arguing that point as interveners at the Supreme Court, emphasizing that the effects of refusing to wear a condom versus wearing a sabotaged condom are the same.

For them, Friday’s majority decision, written by Justice Sheilah Martin, is a partial victory.

“We’re very, very happy on the outcome of the decision,” said Lise Gotell, a scholar on sexual consent at the University of Alberta and a former board chair for the Women’s Legal Education and Action Fund.

But Gotell said the court missed an opportunity to overturn the “wrongly decided” Hutchinson ruling altogether.

She said it would have avoided a situation where cases involving sabotaged condoms are now more difficult to prosecute than cases involving the refusal to use a condom.

“We think that condom sabotage is a form of non-consensual condom removal that should be treated the same way,” Gotell said.

Instead, Martin writes that the Hutchinson decision was limited to its specific factual context and would still apply in cases where a complainant finds out after a sexual act that the accused was wearing a knowingly sabotaged condom.

The minority opinion, which Chief Justice Richard Wagner concurred with, says the Hutchinson decision remains the appropriate lens through which to view cases involving condom use, such that the presence of a condom does not meaningfully change the type of sexual act that is taking place.

The justices in the minority would have found some evidence that the complainant consented to the sexual activity in question, meaning that she had agreed to the type of sex the two engaged in.

But they also said there was some evidence of dishonesty by omission on Kirkpatrick’s part, such that the judge should not have approved a no evidence motion dismissing the charge.

Leaving the test to whether or not fraud has occurred is problematic, the majority decision says, because for fraud to have occurred, a court needs to find that there was dishonesty and that there was also “significant risk of bodily harm.”

“The harms of non-consensual condom refusal or removal go beyond a significant risk of serious bodily harm and are so much wider than the risk of pregnancy and STIs,” Martin’s decision says.

Leaving condom use out of the equation of consent itself would also have perpetuated a myth that “real rape” is defined by physical violence only, Martin writes, and would have left certain types of people and certain types of sex out of the law — such as people who can’t become pregnant, or sexual acts that wouldn’t transmit an infection.

This report by The Canadian Press was first published July 29, 2022.

 

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Montreal skateboarders rally to protect skatepark

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Montreal skateboarders rally to protect skatepark

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Ilia Malinin lands 4 quads – and a backflip – to win his third straight Skate America title

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World champion Ilia Malinin won Skate America on Sunday for the third consecutive year, altering his free skate on the fly after an early mistake and punctuating the program with a backflip that had been banned in competition until this season.

The two-time and reigning U.S. champion scored 290.12 points to finish ahead of Kevin Aymoz of France, whose career-best free skate left him with 282.88 points and earned a standing ovation inside Credit Union of Texas Event Center in Allen, Texas.

Kao Miura of Japan, who was second after his short program, finished third with 278.67 points.

“It was a pretty challenging moment for me, just stepping on the ice. I felt way more nervous than usual,” said Malinin, the early favorite for gold at the 2026 Winter Olympics in Italy. “That may have played a part in the whole program.”

Vancouver’s Wesley Chiu placed ninth in the free skate with a score of 140.08 points, he finished ninth overall with a total of 206.94 points.

The ice dance competition was to be decided later Sunday in the final event of the season-opening Grand Prix. Lilah Fear and Lewis Gibson of Britain had the lead over American world champs Madison Chock and Evan Bates after the rhythm dance.

Malinin and Miura were separated by a mere 0.15 points after their short programs, but it was Aymoz who challenged Malinin for the top of the podium. The 27-year-old from France, who struggled mightily at the end of last season, landed a pair of quads in an error-free program to score 190.84 points — the best of all the free skates — and vault into first place.

Nika Egadze of Georgia was next on the ice but fell on his opening quad lutz and stepped out on his quad salchow, and those two mistakes kept him from medal contention. He wound up fourth with 261.71 points.

Miura, the 19-year-old former world junior champion, landed three quads during a program set to “The Umbrellas of Cherbourg,” the 1964 musical romantic drama film. But Miura lost points for an under-rotated triple axel and on a step sequence that led into a quad toe loop-triple toe loop combination midway through his free skate.

Malinin was last to take the ice, performing a program set to “I’m Not a Vampire” by the rock band Falling In Reverse.

He opened with a perfect quad flip and then hit a triple axel, even though Malinin remains the only skater to have landed the quad version of the jump in competition. Then came the mistake, when he doubled a planned quad loop, leaving Malinin to make changes on the fly over the second half of the program in an attempt to make up the lost points.

After putting his hand down on his triple lutz, Malinin landed a quad toe loop-triple toe loop combination before a quad salchow-triple axel in sequence — a pair of huge jumping passes that sent his technical score soaring.

Malinin capped the recovery of his program with a backflip during his choreographed sequence, a move that had been banned until this season because of its inherent danger. It was expected all along but nonetheless sent a roar through the crowd, just as Malinin’s program came to an end and a steady stream of stuffed animals were thrown onto the ice.

“It was really hard for me in the middle of the program to think what I have to do — what I need to do,” Malinin said when asked about the early mistake. “I just went full autopilot through there and I’m glad I made it out.”

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Leclerc wins US Grand Prix and late penalty gives Verstappen 3rd place over Norris in title chase

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AUSTIN, Texas (AP) — Charles Leclerc earned Ferrari its first United States Grand Prix victory since 2018 with a clever start and a commanding drive Sunday, and Red Bull’s Max Verstappen strengthened his lead in the F1 season championship by finishing third ahead of McLaren’s Lando Norris.

Verstappen earned the podium only after Norris was given a five-second penalty for leaving the track to pass Verstappen in the final laps.

Verstappen immediately complained about the move, while Norris insisted Verstappen also left the track. Norris’ pass came after the two drivers had battled for the final podium spot and critical championship points over several laps and Verstappen had stubbornly refused to give ground.

The penalty and fourth place finish cost Norris valuable points in the title chase. Verstappen stretched his championship lead over Norris from 54 points to 57 with five grand prix and two sprint races left.

Leclerc earned his third win of the season and Ferrari pulled a 1-2 finish with his teammate Carlos Sainz in second. Kimi Raikkonen had been the last Ferrari winner at the Circuit of the Americas in 2018.

But the bigger battle was raging behind them as Verstappen and Norris fought over every inch of the final dozen laps.

Verstappen has not won a grand prix since June and Norris has steadily chipped away at his lead as the Red Bull car has faded. Yet Verstappen still stretched his lead by five points over the weekend by also winning Saturday’s sprint race.

Norris will leave Austin knowing he squandered a big chance to gain ground. He had even earned pole position for Sunday’s race.

Verstappen started right beside him, and it was their battle into the first turn that saw both cars run wide, leaving room for Leclerc to pounce on the opening.

The Ferrari driver jumped from fourth and straight into the lead.

Norris complained Verstappen forced him off the track at the start to begin a battle that would be fought over the entire race.

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