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Article
Non-Consensual Condom Removal in Canadian Law Before and After R. v. Hutchinson
Dalhousie Law Journal
  • Isabel Grant, Allard School of Law at the University of British Columbia
  • Lise Gotell
Faculty Author Type
Current Faculty [Isabel Grant]
Document Type
Article
Publication Date
1-1-2021
Subjects
  • sexual assault,
  • condoms,
  • consent
Disciplines
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.

Citation Information
Lise Gotell & Isabel Grant "Non-Consensual Condom Removal in Canadian Law Before and After R. v. Hutchinson" (2021) 44:2 Dal LJ 439-475.