[Asia Economy Reporter Kwon Jae-hee] If a man who agreed to have sex on the condition of wearing a condom breaks that promise, can he be punished as a sex offender?
On the 3rd (local time), according to The Washington Post (WP) and Canadian CBC, a trial regarding this issue is causing controversy at the Supreme Court in Ottawa, the capital of Canada. Initially, the perpetrator was acquitted in the lower court, but the appellate court overturned the verdict and ordered a retrial.
The case is as follows. In 2017, the victim and the perpetrator met online and met for the first time in March of the same year.
During their first meeting, while discussing sexual relations, the woman stated that she would not engage in sex without a condom, and the man agreed.
They met again at the man’s house and had sexual relations twice. The first time was conducted with mutual consent as agreed, but the second time became problematic.
Before the second encounter, the man briefly turned his body toward the bedside table, and the woman assumed he was putting on a condom and agreed to have sex.
The woman later found out that the man had sex without any contraceptive device and filed a complaint against him.
Since she had already made it clear that she would not have sex without a condom, the man’s breach meant the act was without consent. The man, however, argued that the woman never said she would only consent to sex if he wore a condom.
In the first trial held in 2018, the woman’s claim was not accepted, and the man was acquitted.
The judge at the time stated, "There is no evidence that the woman did not consent to the sexual act."
However, following the woman’s appeal, the British Columbia Court of Appeal overturned the original verdict last year and ordered a new trial.
At the Supreme Court hearing, the perpetrator’s lawyer argued, "He never intended to deceive the woman. If such an appeal is accepted, this man will have a criminal record and must be registered as a sex offender. The consequences are very, very serious."
Kate Finney, a lawyer from the West Coast Women’s Legal Education and Action Fund who attended the trial as a litigation participant, argued, "The law does not reflect real life."
She pointed out, "If consent was given only for sex with a condom, but sex occurred without one, it means the contract was broken and there was exposure to unwanted bodily fluids. Such serious violations must now be addressed by the law."
WP predicted that depending on the outcome of this lawsuit, the legal definition of "sexual consent" could become a broader subject of debate.
During the trial, a 2014 "condom sabotage" case was also mentioned.
In that case, a woman consented to sex on the condition of condom use, but the man poked holes in the condom, resulting in the woman becoming pregnant.
The man was charged with sexual assault, and after appeals, was found guilty by the Supreme Court and sentenced to 18 months in prison.
The majority of the Supreme Court justices ruled that condom sabotage constituted "fraud," invalidating the woman’s consent.
Recently, the act of unilaterally removing a condom during sex, known as "stealthing," has increasingly been recognized as a criminal act.
California in the United States recently recognized such acts as grounds for civil lawsuits, and last month, the Australian Capital Territory (ACT) also criminalized stealthing.
In April of this year, a New Zealand court convicted a man of rape for such conduct, and in 2018, a Berlin court in Germany convicted a police officer for similar behavior.
© The Asia Business Daily(www.asiae.co.kr). All rights reserved.
