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"Recognizing that condom use may form part of the sexual activity in question is also the only way to respect the need for a complainant's affirmative and subjective consent to each and every sexual act, every time," the judgment read. The complainant said she did not know that he did not use a condom the second time, and if she did, she would not have agreed to it. They had sex twice in one night in 2017, once with a condom and then again without one, though without the woman's knowledge, according to the complaint.
Kirkpatrick met a woman online and then in person for a possible sexual relationship. Under Canadian law, sexual assault requires proof of a lack of consent to a particular sexual activity.Ĭondom use may form part of the sexual activity in Kirkpatrick's case because "sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom," Martin wrote. "Since only yes means yes and no means no, it cannot be that 'no, not without a condom' means 'yes, without a condom'," Justice Sheilah Martin wrote in the majority opinion. The act of secretly removing a condom during sex, sometimes referred to as "stealthing," has come under legal scrutiny in countries that include Germany and Britain, both of which have convicted people for the act.