HALIFAX, June 6, 2012 (LifeSiteNews.com) - The lawyer for a Nova Scotia man who was convicted last year of sexual assault for having sex with his girlfriend after he had poked holes in her condoms, is asking the Appeals Court to consider the wider societal implications of birth control deception if the court allows the conviction to stand.
Defense lawyer Luke Craggs told the court on Monday, June 4, that Craig Jaret Hutchinson’s conviction could encourage litigation against anyone dishonest about their use of birth control and could “create undesirable results,” such as men refusing to pay child support because their sexual partners told them there was no possibility of a pregnancy.
“I’m sure if you venture down to Supreme Court family division, there are all sorts of sour men down there who feel they shouldn’t be paying child support because they didn’t want the child in the first place,” Craggs said in the Halifax courthouse, according to the Chronicle Herald.
“That does seem to be one result that could flow from this.”
Crown prosecutor Jim Gumpert, after questioning by the appeal court judges, reportedly conceded that he believed a woman could also be charged with sexual assault for lying to her partner about taking the birth control pill.
“There are very unusual social policy issues and legal issues in this case,” Gumpert acknowledged.
In 2009 Hutchinson was tried and acquitted of a charge of aggravated sexual assault by the Nova Scotia Supreme Court.
The court heard that in 2006 Hutchinson thought he could save his relationship with his girlfriend if she became pregnant, so he used a pin to poke holes in all of her condoms and then used them in sexual relations with her.
The woman, unnamed by court order, did become pregnant but subsequently had an abortion that resulted in her suffering a uterine infection that required medical treatment.
Supreme Court Judge Gerald Moir ruled that although Hutchinson’s actions were fraudulent and “dastardly,” they did not constitute sexual assault and found Hutchinson not guilty.
That decision was overturned by the Nova Scotia Court of Appeal, which ordered a new trial on the basis that the woman had not consented to unprotected sex.
On September 28, 2011, the Nova Scotia Supreme Court found Hutchinson guilty of sexual assault.
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At that trial the Crown prosecutor alleged Hutchinson endangered his girlfriend’s life by sabotaging her condoms.
However, Justice Richard Coughlan said the Crown failed to prove that the woman’s pregnancy was a result of having sex with damaged condoms and inferred that pregnancy is not life-threatening.
In handing down the sentence, Justice Coughlan said, “Considering the evidence, it has not been established that Mr. Hutchinson’s actions exposed (the woman) to a significant risk to her life. The Crown has not shown that Mr. Hutchinson’s actions endangered (her) life.”
Hutchinson was sentenced December 2nd to 18 months in jail, however he was released on bail of $5000 on December 15th.
At Monday’s hearing, the defense argued that although Hutchinson’s actions may have been deceitful, the court should recognize the difference between immoral and criminal conduct.
This “falls outside the boundaries of criminal conduct,” Hutchinson’s lawyer said.
The case, docket number CAC 370497, is being heard by five rather than the usual three judges. Headed by Chief Justice Michael MacDonald, the appeal court panel also includes Justices Oland, Hamilton, Fichaud, and Farrar.
“That is very unusual,” commented Crown Prosecutor Gumpert to media outside the courthouse.