March 7th, 2014
Fraud vitiates consent to sexual contact exposing the fraudulent party to criminal and civil prosecution. The Supreme Court of Canada addressed this today in a case involving ‘condom sabotage’.
In today’s case (R v. Hutchinson) the complainant “agreed to sexual activity with her partner, H, insisting that he use a condom in order to prevent conception. Unknown to her, H had poked holes in the condom and the complainant became pregnant.”. This led to conviction for aggravated sexual assault.
In upholding the conviction and discussing when fraud vitiates consent the Supreme Court of Canada reasoned as follows:
 The Criminal Code sets out a two-step process for analyzing consent to sexual activity. The first step is to determine whether the evidence establishes that there was no “voluntary agreement of the complainant to engage in the sexual activity in question” under s. 273.1(1). If the complainant consented, or her conduct raises a reasonable doubt about the lack of consent, the second step is to consider whether there are any circumstances that may vitiate her apparent consent. Section 265(3) defines a series of conditions under which the law deems an absence of consent, notwithstanding the complainant’s ostensible consent or participation: Ewanchuk, at para. 36. Section 273.1(2) also lists conditions under which no consent is obtained. For example, no consent is obtained in circumstances of coercion (s. 265(3)(a) and (b)), fraud (s. 265(3)(c)), or abuse of trust or authority (ss. 265(3)(d) and 273.1(2)(c)).
 We conclude that the first step requires proof that the complainant did not voluntarily agree to the touching, its sexual nature, or the identity of the partner. Mistakes on the complainant’s part (however caused) in relation to other matters, such as whether the partner is using effective birth control or has a sexually transmitted disease, are not relevant at this stage. However, mistakes resulting from deceptions in relation to other matters may negate consent at the second stage of the analysis, under the fraud provision in s. 265(3)(c) of the Criminal Code.
 Applying this template to the facts in this case leads us to conclude that, at the first step, the complainant voluntarily agreed to the sexual activity in question at the time that it occurred. The question is whether that consent was vitiated because she had been deceived as to the condition of the condom. This question is addressed at the second step. The accused’s condom sabotage constituted fraud within s. 265(3)(c), with the result that no consent was obtained. We would therefore affirm the conviction and dismiss the appeal.