Gotell & Grant on Non-Consensual Condom Removal

Lise Gotell and Isabel Grant (University of Alberta and University of British Columbia - Faculty of Law) have posted Non-Consensual Condom Removal in Canadian Law Before and After R. v. Hutchinson (44:2 Dal LJ 439-475 (2021)) on SSRN. Here is the abstract:

 

This paper examines the phenomenon of nonconsensual condom removal (NCCR) and its relationship to sexual assault in Canada. Using empirical studies and the insights of feminist theory, we explore the nature of the harms caused by NCCR and contend that this pervasive practice constitutes sexual assault. We then critique the decision of R v Hutchinson, which held that condom sabotage does not negate subjective consent, ignoring the dignitary harms of NCCR. While lower court decisions before Hutchinson recognized that consent to sex with a condom does not include consent to sex without, courts after Hutchinson have struggled to distinguish the decision in ways that lack coherence or have simply ignored the decision altogether. After briefly examining legislative amendments in other jurisdictions, we argue for a return to the fundamental finding in R v Ewanchuk that how sexual activity is carried out, including whether a condom is used, must be part of the subjective consent inquiry.