The Supreme Court of Canada ruled today that a person who does not wear a condom during sex contrary to what their partner requested exposes themselves to a conviction of sexual assault.

The decision of the highest judicial authority in Canada was issued unanimously by its members. The decision stated that "stealthing," i.e. pretending to use a condom or removing it before sex without the partner's consent, can constitute a violation of the legal foundations of consensual sex.

"A complainant who agrees to have sex on the condition that their partner wears a condom has not consented to have sex without a condom," wrote Justice Sheila Martin in the majority decision of five of the nine Supreme Court judges.

The decision was issued in the case of Ross McKenzie Kirkpatrick, a man from the province of British Columbia who did not wear a condom during intercourse with the complainant, despite her prior insistence that he wear one.

According to the majority of judges, the complainant presented evidence proving that she did not consent to sex without a condom.

Despite a difference of opinion regarding the legal standard applied in this case, the four dissenting judges also believe that the trial judge erred in concluding that there was no evidence and in rejecting the charge of sexual assault.

Therefore, it is necessary to hold a new trial, according to what the Supreme Court concluded today, which did not reach any conclusion regarding whether Kirkpatrick was guilty or innocent.

Kirkpatrick had met the complainant online in 2017 (the complainant's name is protected under a publication ban).

The two had sex twice in one night. The complainant said that she had previously insisted that Kirkpatrick wear a condom. This he did the first time, but he failed to do so the second time.

The complainant said she thought that Kirkpatrick, the second time, took another condom when he briefly turned to the bedside table. She added that she only realized he was not wearing a condom when he ejaculated inside her.

The complainant testified she did not consent to intercourse without a condom.

The police charged Kirkpatrick with sexual assault. However, a judge in British Columbia acquitted him, stating that there was no evidence that the complainant did not consent to sex without a condom, nor was there evidence that Kirkpatrick acted fraudulently.

In 2020, the British Columbia Court of Appeal unanimously ordered a new trial. However, Kirkpatrick appealed the ruling to the Supreme Court of Canada, which rejected the appeal today.