Stealthing, or non-consensually removing a condom during sex, is now considered a form of sexual assault in Canada. Understanding this offence and its legal implications is crucial for those facing related charges.
If asked to define what constitutes a sexual assault under Canadian law, could you respond with a comprehensive answer?
Sure, rape is clearly a form of sexual assault, but would you also include forced unwanted kissing, touching, and any other non-consensual activities that interfere with a person’s sexual integrity? And, would you be able to detail the critical element of consent in the context of what constitutes a sexual assault?
If you answered no, the Greater Toronto Area sexual assault defence lawyers of Mass Tsang will tell you that they’re not surprised. Canada’s Criminal Code leaves the definition of sexual assault somewhat open-ended and subject to interpretation and the issue of consent. We’ll delve into this deeper, but first, another question: Do you know what “stealthing” is, and is stealthing a crime under Canadian law?
Stumped? Well, read on as our lawyers help you understand stealthing and how it is now a prosecutable sexual offence while adding clarity to your understanding of sexual assault under Canadian law.
Canada’s Criminal Code defines sexual assault as a Section 265 assault, Section 276 assault with a weapon or causing bodily harm, or 268 aggravated assault if these offences are committed with a sexual intent. The primary Section 265 definition of assault is:
If a weapon is used or the assault causes physical harm, the offence is elevated to a sexual assault with a weapon or causing bodily harm. If the sexual assault wounds, maims, disfigures or endangers the life of the victim, it is elevated to an aggravated sexual assault. Charges of sexual assault carry stiffer penalties than regular assaults, and a conviction can result in mandatory registration with the national sex offender registry .
The crux of Canadian sexual assault law is that any sexual touching or activity that takes place without consent from the victim constitutes sexual assault. Touching of a sexual nature is only lawful if consent was present during the time of the incident. According to the Criminal Code, consent is legally not present under the following scenarios:
As noted, the Criminal Code’s definition of sexual assault is open-ended and leaves it to the courts to determine whether a sexual assault has been committed. Now let’s turn to the subject of stealthing.
As a relatively new entry into the legal lexicon, Psychology Today defines stealthing as “non-consensually and surreptitiously removing a condom during sex.” The term had apparently been used in the Gay community since 2014 and was first identified as a legal issue in a 2017 article in the Columbia Journal of Gender and Law. That article called for legal responses to the act due to its violation of a victim’s dignity and autonomy and the physical risks—unwanted pregnancy, sexually transmitted disease, and psychological trauma—it posed to victims. The article suggested that stealthing is “rape-adjacent” and argued that stealthing is a sex crime because it violates the concept of consent within the context of sexual assault law.
Q: Is stealthing illegal in Canada?
A: Yes, stealthing is illegal in Canada. The Supreme Court has ruled that removing a condom without a partner’s consent during sex constitutes sexual assault, as it breaches the conditions of consent.
Several women’s groups that consider stealthing as a form of sexual violence have been encouraging Canadian and U.S. legislators to make stealthing illegal. However, a 2022 Canadian Supreme Court ruling appears to have done the Canadian legislators’ job for them. In R v. Kirkpatrick [2022 SCC 33] , a 5-4 majority of justices held that anyone who agrees to engage in sex with a condom but then fails to do so or removes it without their partner’s consent is committing a form of sexual assault.
“Sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom, notes the ruling. “Condom use cannot be irrelevant, secondary or incidental when the complainant has expressly conditioned her consent on it.” Or, as put by Justice Sheilah Martin, “a complainant who consents to sex on the condition that their partner wear a condom does not consent to sex without a condom.”
How this Supreme Court ruling will work in the lower courts remains to be seen, and no offender has yet been convicted of sexual assault based on stealthing. Interestingly, a 2014 high court decision — R v. Hutchinson [2014 SCC 19] — already opened potential cases of stealthing to possible prosecution. I In that case, the justices held that an act of fraud had nullified a victim’s consent to sexual activity because the offender had poked holes in the condom.
However, the Supreme Court went further in its recent ruling. While the minority justices in the decision wanted to address the case as consent-nullifying fraud similar to the Hutchinson ruling, the majority determined that courts should only have to determine whether condom use formed part of the sexual activity in question. If the courts had to decide whether each case of stealthing constituted an act of fraud that nullifies consent, it would improperly shift the analysis of the stealthing act away from the victim’s subjective consent and require the Crown to prove deception by the offender. This would “misdirect the inquiry and create gaps which leave many outside the law’s protection in relation to sexual assault.”
If you’ve been charged in the Greater Toronto Area with sexual assault based on stealthing, the sexual assault defence lawyers at Mass Tsang would be happy to strategize your defence. Our skilled lawyers have successfully defended 100s of area clients from sexual assault charges. To secure the best GTA defence against your sexual assault charges, contact the experienced legal team at Mass Tsang.
