Supreme Court of Canada: The Court, while analyzing the position as to
when the consent to a sexual act should be considered voluntary and when
it should amount to fraud, said that it is a two step process under
Sections 273.1(1) and 265(3) of the Criminal Code. The first is to see
whether the complainant did or did not agree “voluntarily” for the
sexual act under Section 273.1(1) and the second is to consider whether
there are any circumstances which vitiated complainants consent
amounting to fraud under Section 265(3) of the Criminal Code. The Court
said that where the complainant subjectively agrees to the specific
physical activity, its sexual nature and the identity of the partner it
is a voluntary agreement. Further it was said that how the physical act
was carried out would be a vague and unclear test for consent and will
criminalize such conduct which is lacking necessary reprehensible
character.
facts of the case
Briefly stated the facts of the case are that the complainant agreed to sexual activity with her partner in a certain manner i.e. sexual intercourse with an intact condom however the accused deliberately sabotaged the condom without her knowledge due to which she became pregnant. The Court while dismissing the appeal, held that in this case there was no consent by reason of fraud in the light of Section 265(3). The dishonesty on the part of the accused is indeed evident and admitted however the question of sufficient deprivation to establish fraud is also to be seen. Essentially here the sexual act does not include the conditions or qualities of the act such as birth control measures. The “sexual act in question” was sexual intercourse and the complainant voluntarily agreed to it. Since the concept of fraud under Section 265(3) is consistent with Charter values of equality and autonomy hence every deception that induces consent should not be criminalized. [R v. Hutchinson, 2014 SCC 19, decided on 7 March, 2014]1
Hutchinson told his girlfriend that he wanted a child with her, but she did not want to get pregnant. After the two split up, Hutchinson confessed to her that he had sabotaged the condoms they were using. The complainant testified that she would not have consented to have sexual intercourse with Hutchinson if she had been aware of the condition of the condoms. She ended up getting pregnant and having an abortion. After the abortion the complainant suffered extreme bleeding, blood clotting, and severe pain for about two weeks. Hutchinson was charged with aggravated sexual assault. The trial judge found there was consent to the application of force, the sexual intercourse, and that a trier of fact could not conclude that consent was vitiated because there was no evidence of a significant risk of serious bodily harm. Although the judge considered the evidence of the two doctors regarding the risks of complications during pregnancy, he made no finding as to whether the Crown presented any evidence of endangerment. The Crown appealed on the conviction.
Issue
Decision
Appeal allowed, new trial ordered.
Reasons
Roscoe, writing for the majority, held the trial judge erred in finding that consent as defined in s.273.1(1) had the same meaning as consent to the application of force in s.265(1)(a) of the Criminal Code. Since s.265 applied to all forms of assault, including sexual assault, and s.273.1
applied only to sexual assaults, the words "voluntary agreement ... to
engage in sexual activity in question" must mean something more than
consent to the application of force. The sabotaging of the condoms
fundamentally altered the nature of the sexual activity in question.
The complainant's consent could therefore be found not to be reasonably
informed and freely exercised. Even if the trier of fact found that
there was consent because the sexual activity in question was sexual
intercourse, and not specifically protected sexual intercourse, the
consequences of Hutchinson's deceit caused serious bodily harm to the
complainant, thus satisfying the test for fraud vitiating consent.
There was some evidence that the complainant's life was exposed to
peril, danger, harm or risk as a result of the accused's sexual assault.
The medical evidence supported a finding that there were numerous
serious risks to the health and life of a pregnant woman. Since there
was some evidence of endangerment or bodily harm, the directed verdict
of acquittal should not have been granted.
Ratio
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facts of the case
Briefly stated the facts of the case are that the complainant agreed to sexual activity with her partner in a certain manner i.e. sexual intercourse with an intact condom however the accused deliberately sabotaged the condom without her knowledge due to which she became pregnant. The Court while dismissing the appeal, held that in this case there was no consent by reason of fraud in the light of Section 265(3). The dishonesty on the part of the accused is indeed evident and admitted however the question of sufficient deprivation to establish fraud is also to be seen. Essentially here the sexual act does not include the conditions or qualities of the act such as birth control measures. The “sexual act in question” was sexual intercourse and the complainant voluntarily agreed to it. Since the concept of fraud under Section 265(3) is consistent with Charter values of equality and autonomy hence every deception that induces consent should not be criminalized. [R v. Hutchinson, 2014 SCC 19, decided on 7 March, 2014]1
Hutchinson told his girlfriend that he wanted a child with her, but she did not want to get pregnant. After the two split up, Hutchinson confessed to her that he had sabotaged the condoms they were using. The complainant testified that she would not have consented to have sexual intercourse with Hutchinson if she had been aware of the condition of the condoms. She ended up getting pregnant and having an abortion. After the abortion the complainant suffered extreme bleeding, blood clotting, and severe pain for about two weeks. Hutchinson was charged with aggravated sexual assault. The trial judge found there was consent to the application of force, the sexual intercourse, and that a trier of fact could not conclude that consent was vitiated because there was no evidence of a significant risk of serious bodily harm. Although the judge considered the evidence of the two doctors regarding the risks of complications during pregnancy, he made no finding as to whether the Crown presented any evidence of endangerment. The Crown appealed on the conviction.
Issue
- Is there a difference between consenting to protected sex and consenting to unprotected sex?
- If so, does the lack of consent to unprotected sex change the act to sexual assault?
- Are the effects of the abortion to be included in the harm caused by the sexual assault?
Decision
Appeal allowed, new trial ordered.
Reasons
Roscoe, writing for the majority, held the trial judge erred in finding that consent as defined in s.273.1(1) had the same meaning as consent to the application of force in s.265(1)(a) of the Criminal Code. Since s.265 applied to all forms of assault, including sexual assault, and s.273.1
applied only to sexual assaults, the words "voluntary agreement ... to
engage in sexual activity in question" must mean something more than
consent to the application of force. The sabotaging of the condoms
fundamentally altered the nature of the sexual activity in question.
The complainant's consent could therefore be found not to be reasonably
informed and freely exercised. Even if the trier of fact found that
there was consent because the sexual activity in question was sexual
intercourse, and not specifically protected sexual intercourse, the
consequences of Hutchinson's deceit caused serious bodily harm to the
complainant, thus satisfying the test for fraud vitiating consent.
There was some evidence that the complainant's life was exposed to
peril, danger, harm or risk as a result of the accused's sexual assault.
The medical evidence supported a finding that there were numerous
serious risks to the health and life of a pregnant woman. Since there
was some evidence of endangerment or bodily harm, the directed verdict
of acquittal should not have been granted.
Ratio
- Fraud vitiates consent in sexual assault.
- Agreement to engage in sexual activity in s.273.1(1) is more than consent to the application of force under s.265.
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