Stealthing as Sexual Assault: The Supreme Court of Canada’s Decision in R v Kirkpatrick and Implications for Campus Sexual Violence Policies Across Canada
Caitlin Salvino, 2L, UTFLR Articles Editor
In R v Kirkpatrick, 2022 SCC 33 (CanLII) (Kirkpatrick), the Supreme Court of Canada (SCC) delivered a decisive ruling on “stealthing.” In this commentary, I examine the SCC’s majority opinion in Kirkpatrick and argue that the implications of the decision extend beyond criminal law to the administrative context – most notably campus sexual violence policies.
The term “stealthing” refers to non-consensual condom removal during sexual intercourse. In “'Rape-Adjacent': Imagining Legal Responses to Non-consensual Condom Removal,” civil rights lawyer Alexandra Brodsky explains that stealthing “exposes victims to physical risks of pregnancy and disease,” and has been described by survivors [1] as a “disempowering [and] demeaning violation of a sexual agreement.”
Despite its recognition as a form of sexual violence by gender-based violence experts, until 2022, the status of stealthing in Canadian criminal law was unresolved. In Kirkpatrick, the SCC finally addressed this legal grey area in a 5:4 decision that determined the analytic framework for addressing stealthing as a sexual assault offence under the criminal law.
Elements of Sexual Assault Offences Under the Criminal Law and Stealthing
Section 265(1) of the Criminal Code prohibits physical assault. However, when the assault is sexual in nature, Parliament has created a set of sexual assault offences and evidentiary procedures to respond to this unique form of harm under sections 271 to 278 of the Criminal Code. Integral to the unique nature of sexual assault is the centrality of consent, where the complainant’s consent serves as the key distinguishing factor between criminal sexual assault and consensual sexual activity (Kirkpatrick, para 27).
In the case of sexual assault that is neither aggravated nor with a weapon, the offence is not directly defined in the Criminal Code. Instead, sexual assault constitutes any form of assault listed in section 265(1) of the Criminal Code, “which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated” (R v Ewanchuk, [1999] 1 SCR 330 at para 24 (Ewanchuk)). Parliament has defined consent in the context of sexual assault and non-exhaustively enumerated situations where consent is not obtained under sections 273.1(1) and 273.1(2) of the Criminal Code.
The actus reus of a sexual assault offence is “unwanted sexual touching” (Ewanchuk at para 23; Kirkpatrick at para 28). For the purposes of finding the actus reus, the evaluation of whether consent was obtained is subjective – measured only on whether the complainant wanted the sexual touching at the time it occurred. At this stage, the accused’s perceptions of consent are not relevant to the analysis. The mens rea for the offence is the accused’s “intention to touch, knowing, being reckless of, or being wilfully blind to a lack of consent from the person being touched” (Ewanchuk at paras 23; Kirkpatrick at para 28).
“Sexual Activity in Question” or “Fraud Vitiating Consent”?
In Kirkpatrick, the accused Ross McKenzie Kirkpatrick (RMK) was charged with sexual assault after “stealthing” the complainant. The complainant first met RMK online. Prior to meeting in person, the complainant shared in writing “I only have sex if I use condoms,” a condition to which RMK agreed. When they met in person, after discussing again the need for condom use, RMK and the complainant had consensual intercourse with a condom. Later that same evening, while engaging in sexual activity again but before having intercourse, RMK motioned as if he had put on a condom. The complainant believed he had put on a condom during intercourse and only realised when he ejaculated inside her that he was not wearing a condom. Following this realisation, the complainant was deeply upset about the disregard of her boundaries. In a series of texts the next day, RMK shared that he chose not to wear a condom because he had been “too excited” and wrote that he thought “it was really funny” when she called his behaviour sexual assault (Kirkpatrick at para 12).
At the court of first instance, the accused filed a no evidence motion arguing that the Crown had not proven the absence of the complainant’s consent. The motion was granted by the trial judge and the sexual assault charges were dismissed. The British Columbia Court of Appeal unanimously granted the appeal and set aside the acquittal. However, the appellate court was split on the analytical framework to be applied in cases of stealthing.
The issue to be determined by the SCC was identifying the appropriate analytic framework to determine if the actus reus elements of sexual assault are met in cases of stealthing. To establish the actus reus of sexual assault, courts engage in a two-part analysis. At the first stage, the court will determine if the complainant voluntarily agreed “to engage in the sexual activity in question” at the time that the sexual activity occurred (Criminal Code at section 273.1(1) and 273.1(1.1)). As previously mentioned, this determination is based on the subjective beliefs of the complainant, as well as the non-exhaustive list of situations where no consent is obtained under section 273.1(1) of the Criminal Code. If the court finds that there was consent, then the evaluation will continue to the next stage.
At the second stage of the evaluation, the court will determine if the consent was vitiated. This analysis considers section 265(3) of the Criminal Code, a provision that applies to all forms of assault and lists four circumstances where consent cannot be obtained as a matter of law. One of the listed grounds that vitiates consent is fraud. The SCC considered condom use related to fraud in its 2014 decision R v Hutchinson, 2014 SCC 19 (Hutchinson). Hutchinson dealt with an accused who had poked holes in a condom without their sexual partner's knowledge. In Hutchinson, the SCC held that the proper consideration of this type of sexual assault was not a question of whether the complainant consented "to engage in the sexual activity in question" under section 273.1(1) of the Criminal Code, but rather whether the accused's behaviour constituted an act of fraud vitiating consent under section 265(3)(c) of the Criminal Code (Hutchinson at para 5).
In Kirkpatrick, the SCC similarly faced two potential options for analysing stealthing: (1) condom use as forming the “sexual activity in question,” or (2) removing a condom as fraud vitiating consent. The majority adopted the first analytical framework, finding that in situations where condom use is a condition for sexual activity, it then should be evaluated under the “sexual activity in question” stage of the actus reus analysis. The majority held that “sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom” and that the law of consent must uphold an individual’s sexual integrity when they only consent to sexual intercourse with a condom (Kirkpatrick at para 43).
The SCC majority came to this conclusion through the application of the principles of statutory interpretation, finding that condom use forming sexual activity under section 273.1(1) of the Criminal Code is the only interpretation that “reads s. 273.1 as a whole and harmoniously with this Court’s jurisprudence on subjective and affirmative consent” (Kirkpatrick at para 45). The majority also found that this interpretation “fulfills Parliament’s objective of giving effect to the equality and dignity affirming aims underlying the sexual assault prohibitions; responds to the context and harms of non-consensual condom refusal or removal; and respects the restraint principle in criminal law” (Kirkpatrick at para 45).
In making this finding, the SCC majority distinguished Kirkpatrick from its 2014 decision in Hutchinson where the Court determined that the act of poking holes in a condom constituted fraud vitiating consent under section 265(3)(c) of the Criminal Code. The SCC majority held that in situations where the accused poked holes in a condom, the analytic framework of fraud from Hutchinson still applies. However, in situations where stealthing occurs, section 265(3)(c) is not well-equipped for this kind of harm (Kirkpatrick at para 65, 103). The majority found that applying a fraud analysis under section 265(3)(c) would improperly shift the analysis of the stealthing act away from the complainant’s subjective consent to certain sexual activities towards an analysis of the accused’s behaviour. Such an approach, which would require the Crown to prove deception by the accused, “misdirects the inquiry and creates gaps which leave many outside the law’s protection in relation to sexual assault” (Kirkpatrick at para 69).
Thus, in Kirkpatrick the majority held that where sexual intercourse is conditioned on condom use, the only analytical framework that should be applied is whether condom use formed the “sexual activity in question” under section 273.1 of the Criminal Code (Kirkpatrick at para 2). As a remedy, the SCC dismissed the appeal and ordered a new trial (Kirkpatrick at para 108).
The Concurrence and Horizontal Stare Decisis
The four concurring justices agreed with the majority’s finding that the appeal should be dismissed and a new trial should be ordered, but disagreed with the reasoning. These judges held that the precedent from Hutchinson extends to situations of stealthing and that stealthing must be analysed under section 265(3)(c) of the Criminal Code as fraud vitiating consent (Kirkpatrick at para 120). The concurring judges developed a set of horizontal stare decisis criteria (per incuriam, unworkability, or foundational erosion) and determined that the Hutchinson precedent cannot be overturned (Kirkpatrick at para 202).
Implications Beyond the Criminal Law: The Relevance of Kirkpatrick to Campus Sexual Violence Policies
Kirkpatrick represents a ground-breaking case for survivors of sexual assault – the majority of whom are women and live with intersecting marginalised identities (Kirkpatrick at para 62). As documented in social science evidence, stealthing is a pervasive form of sexual violence [2] in Canada with significant physical and emotional consequences for those who experience it.
The implications of this decision extend beyond criminal law to the administrative context. Specifically, the SCC’s recognition of stealthing as a form of sexual assault is relevant to campus sexual violence policies across Canada. Currently there is provincial legislation requiring all post-secondary institutions to create campus sexual violence policies in British Columbia, Manitoba, Ontario, Quebec, and Prince Edward Island. In Nova Scotia, through the Memorandum of Understanding Between the Province of Nova Scotia and the Nova Scotia Universities, the provincial government requires campus sexual violence policies and other related programs through Memorandums of Operation established with all post-secondary institutions every 5 years. However, these cross-Canada provincial campus sexual violence acts are all limited in scope and, with the exception of Quebec, do not include specific requirements on the content of the mandated policies. To date, none of the above-mentioned provincial campus sexual violence legislation requires the mandated campus sexual violence policies to include explicit recognition of stealthing as a form of sexual violence covered under their policy.
A 2017 systematic review of Canadian campus sexual violence policies revealed that there were no campus sexual violence policies in Canada that explicitly recognised stealthing in their list of prohibited behaviour that constitutes sexual violence. In the five years since the 2017 review, student activists have successfully advocated for reforms to their campus sexual violence policies, including the addition of explicit recognition of stealthing as a form of sexual violence. In Kirkpatrick, the SCC majority recognised this successful advocacy by noting that the campus sexual violence policies of Dalhousie University, the University of Ottawa, and St. Francis Xavier all explicitly recognise stealthing as a form of sexual violence within their scope (Kirkpatrick at para 59). Despite the recognition of these three policies, many campus sexual violence policies continue to omit any reference to stealthing, leaving an interpretive gap that may cause students, faculty, and staff to perceive stealthing as falling outside of the scope of their campus policy [3].
Following the SCC’s decision in Kirkpatrick affirming stealthing as a form of sexual assault, campus sexual violence policies across Canada should be reformed to reflect this decisive finding by Canada’s highest court. In their ruling, the SCC majority recognised the “complex harms” caused by stealthing and held that “having control over how one’s body is touched must include the right to choose whether one’s body is penetrated by a bare penis or a condom-covered penis and to limit one’s consent accordingly” (Kirkpatrick at para 64). Campus sexual violence policies should also recognise and offer redress for the “complex harms” that are caused by stealthing, which may include negative impacts on educational performance and participation. Explicit recognition in campus sexual violence policies is necessary to communicate to students, faculty, and staff that this behaviour is not tolerated and will be investigated as sexual violence if a formal complaint is made. Further, as a form of sexual violence that has only gained recognition as such recently, stealthing remains deeply immersed in stigma. A post-secondary institution adding explicit recognition of stealthing as prohibited conduct in their campus sexual policy communicates to all members of the campus community that a report of stealthing will be taken seriously and not questioned as to whether it really constitutes sexual violence requiring an investigation.
The Kirkpatrick decision also represents an opportunity for provincial governments to re-visit or enact for the first time campus sexual violence legislation that not only requires post-secondary institutions to have campus sexual violence policies but include minimum standards as to their content. The recognition of stealthing “as a form of sexual violence which generates various forms of harm” by Canada’s highest court could serve as impetus to legislatively require all administrative campus sexual violence policies to provide distinct forms of redress for stealthing in the administrative context, in addition to the criminal prosecution option.
Looking Ahead
By clarifying the analytical framework for evaluating stealthing under the Criminal Code, the SCC in Kirkpatrick affirmed stealthing as a form of sexual assault. This ground-breaking decision has implications that extend beyond criminal law to the administrative context. There is now an opportunity for post-secondary institutions to respond by amending their campus sexual violence policies to explicitly recognise stealthing as a form of sexual violence. Whether post-secondary institutions amend their policies on an individualised basis or after being mandated to through provincial legislation, it is time for administrative responses to sexual violence to progress and reflect at a minimum the kinds of harm being redressed in the criminal justice system.
[1] In this commentary I use the term survivor to refer to people who have experienced sexual assault, including stealthing. I recognize, however, that not everyone who experiences sexual assault identifies as a “survivor.” Some people may identify more with the term “victim” and others may not wish to place labels on themselves. I also use the term “complainant” when speaking about survivors in the context of the criminal trial process.
[2] In the administrative context I use the term sexual violence, instead of sexual assault. Sexual violence is an umbrella term that captures a broad range of activities that includes but is not limited to sexual assault. A non-exhaustive list of actions that constitute sexual violence include sexual assault, sexual harassment, stalking, indecent exposure, voyeurism, distribution of sexually explicit photograph or recording, and stealthing. See Salvino et al., “Our Turn: A National Action Plan to End Campus Sexual Violence”, Students’ Society of McGill University (2017); C. Salvino and C. Spencer, “Our Turn: One Year Later Report”, Students for Consent Culture Canada (2019).
[3] See for example: University of British Columbia, “Sexual Misconduct and Sexualized Violence Policy” (passed September 2020); McGill University, “Policy Against Sexual Violence” (reviewed March 28, 2019); Carleton University, “Carleton University Sexual Violence Policy” (updated June 9, 2022); and Memorial University of Newfoundland and Labrador, “Sexual Harassment and Sexual Assault Policy” (reviewed October 4, 2021).