CBC Article Review: Sexual Assault Charges Laid After Sex Without a Condom
CBC Article Review
Ross McKenzie Kirkpatrick was charged with sexual assault after neglecting to wear a condom while having intercourse with a woman who did not consent to have sex without a condom. The alleged offence occurred in March 2017, a few days after the couple first met in person. They had spoken online before that meeting, and, face-to-face, they discussed sexual practices. The woman said she told Kirkpatrick that she asserted on the use of condoms, which the court heard had been a condition of her consent. When the couple was intimate, the woman claimed she pushed him away, and he turned briefly to the side table. "Although the complainant believed that he was getting a condom, he was not doing so," Groberman wrote. The two then engaged in vaginal intercourse. The woman said Kirkpatrick told her he was "too excited to wear a condom." Thus, she took the matter to the police (Proctor, 2020). Kirkpatrick was acquitted of sexual assault by a Surrey provincial court judge however, the case will be tried once again after B.C’s Court of Appeal overturned that verdict. The appeal court judge says the Surrey court failed to consider the evidence of ‘passive dishonesty’ in this case.
This court case brings up an important conversation with regards to consent. In any sexual encounter, the person has a responsibility to ensure that the other person feels comfortable and safe before engaging in sex. As a therapist, consent conversations can also arise during couples counselling exercises and exploration. When matters of consent tread into our office, they present themselves in various forms. Past trauma related to rape, sexual assault and harassment is regrettably quite common. (Note: this requires specialized training in trauma and should only be done with a certified mental health professional). Nevertheless, not all incidences of consent are as clear-cut as we would like to believe. Many "grey areas" also show up in sessions - actions that may not precisely be unlawful but can still cause mental trauma and emotional pain. Therefore, a therapist may see clients who have felt as though their boundaries have been violated. Again, a therapist may also see clients who were the ones breaking or pushing those boundaries. These situations could be thought-provoking to handle, as ‘perpetrators’ sometimes do not realize they are harming.
Some helpful guidelines for clients engaging in sex are: Consent can be revoked at any time and all sexual activity must stop the minute consent is not provided. Being in a relationship does not compel or require anyone to do anything. Consent should never be assumed or understood, even if you are in a relationship or have had sex before. You do not have the authority to use guilt, threat, or intimidation to force someone into sex, even if that person says "yes." Silence or the absence of a response is not consent. Be transparent and concise when getting consent. Agreeing to go back to your place does not mean they consent to having sex. There is no consent when you use your power, trust, or authority to coerce someone into sex, and ‘passive dishonesty’ can be lead to matters of sexual assault.
For more free information on sexual consent check out the website below:
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Reference: Proctor, J. (2020). Sex with a condom is legally different from sex without, B.C. court rules in consent-case appeal Social Sharing. CBC News. Retrieved 18 July 2020, from https://www.cbc.ca/news/canada/british-columbia/sex-condom-consent-court-1.5572724.
