Emily MacKinnon and Constance Crompton argue that the 1998 Supreme Court of Canada decision, R. v. Cuerrier, changed the law of sexual assault to encompass situations of HIV non-disclosure, and that R. v. Hutchinson – a  2014 case in which the accused sabotaged condoms to impregnate his girlfriend – illustrates the problems with the Court’s new approach.

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The facts of the recent Supreme Court of Canada decision, R. v. Hutchinson, are tailor-made for headlines. The complainant, N.C., did not want to become pregnant. She had sex with her partner, Craig Hutchinson, but insisted they use condoms. To her surprise, N.C. became pregnant. Hutchinson later confessed that he had poked holes in the condoms in the hope that N.C. would conceive. Hutchinson was convicted of sexual assault at trial.

For a sexual assault, three elements must be present: (1) touching (2) of a sexual nature and (3) without consent. In Hutchinson, the Court’s attention was focussed on the last condition: since N.C. consented to sex with Hutchinson at the time it was happening, how can we say—in law—that the touching was non-consensual?

A majority of the Supreme Court of Canada found that Hutchinson’s conduct—poking holes in the condoms—was “fraud”, and as a result, N.C.’s consent was not valid.

Iceberg in Lago, Argentina by Ilya Haykinson

This finding is part of a new development in the law that is expanding the kind of fraud that can invalidate consent to sex. Prior to 1998, only fraud pertaining to “the nature or quality of the act” would invalidate consent. But in a 1998 decision called R. v. Cuerrier, in which the accused failed to inform his sexual partners about his HIV-positive status, the Supreme Court of Canada changed the law. Thereafter, fraud invalidated consent if the accused lied about something that carried with it a “significant risk of serious bodily harm.” The Court affirmed this approach to HIV non-disclosure in two 2012 cases, R. v. Mabior and R. v. D.C. In Hutchinson, the majority decided that “[d]epriving a woman of the choice whether to become pregnant or increasing the risk of pregnancy is equally serious as a ‘significant risk of serious bodily harm’ within the meaning of Cuerrier…”

Equating the risk of pregnancy with the risk of HIV-infection is odd. However, we are relieved that the Court remained consistent by applying its reasoning from the HIV non-disclosure cases to the condom sabotage in Hutchinson. The alternative – only applying the new definition of fraud to HIV non-disclosure – would represent a troubling sort of HIV exceptionalism. We have worried that Cuerrier was a sign of its times—a response to the late-1990s’ “AIDS panic.” And while we remain concerned that this new approach to fraud has grown out of the deeply-ingrained stigmatization of HIV and AIDS, we are glad that the Court is willing to tar all facts with the same fraudulent brush.

Nevertheless, Hutchinson, like the HIV non-disclosure cases, rests on a rather troubling equation: deceit + risk of physical harm = fraud. Surely, it is the accused’s conduct—the lie—and not the potential physical outcome of the lie that ought to concern us. Feminists have fought hard for the recognition that physical consequences are not relevant in sexual assault: a complainant does not need to be scratched, bruised, or even to have fought back to express non-consent. In fact, the Criminal Code requires that sexual partners take “reasonable steps” to ascertain consent. Hutchinson, however, refocuses on the physical, subordinating psychological and emotional harm. We are not suggesting that both physical and non-physical effects should always result in criminal charges, but rather that it is unprincipled to draw a line between them.

This leaves us wondering, as with other cases that extended the definition of fraud, if sexual assault is even the right framework within which to evaluate Hutchinson. We are uneasy about the criminal law’s interference in the minutiae of sexual negotiations, even when the sex carries potential consequences such as the risk of mortality that accompanies the chance of contracting a disease or becoming pregnant.  Framing sex as a site of danger, in which every misconduct is read as sexual assault, saps sexual agency. Moreover, broadening the definition of sexual assault to include all the ordinary, petty lies that sexual partners tell one another – which, we suggest, Hutchinson gestures towards – both diminishes the term’s utility and encourages unprincipled distinctions between the physical and emotional. Sexual give-and-take may be better addressed by tort law, if at all. Hutchinson may involve deception and even moral wrong, but it does not follow that it must be categorized as a sexual assault. ______________________________________________

Emily MacKinnon is a lawyer who maintains a general litigation practice, including public interest and advocacy work, at McCarthy Tétrault LLP in Vancouver, B.C.

Constance Crompton is an associate professor of Digital Humanities at the University of British Columbia, Okanagan.