OTTAWA, March 7, 2014 (LifeSiteNews.com) – The Supreme Court of Canada has dismissed an appeal by a Nova Scotia man who was convicted of sexual assault for piercing his girlfriend’s condoms.
Craig Jaret Hutchinson, 43, of Clyde River, Nova Scotia, poked holes in his girlfriend’s condoms in order to impregnate her in hopes of saving their relationship.
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.
The Supreme Court of Canada heard Hutchinson’s appeal in November and released its decision March 7.
“The complainant in this case agreed to engage in sexual activity in a certain manner, that is, sexual intercourse with an intact condom,” the court related in its decision.
“Mr. Hutchinson deliberately sabotaged the condom without her knowledge or agreement. … Because of the deliberate deceit of her partner, the sexual activity was not carried out in the manner that the complainant had agreed to.”
“Put simply, the complainant did not consent to how she was touched, and thus she did not voluntarily agree to the sexual activity in question,” the Supreme Court justices said. “We would therefore dismiss the appeal.”
The case has been making its way through the courts after Hutchinson was originally acquitted of a charge of aggravated sexual assault in 2009. At that time, Nova Scotia Supreme Court Judge Gerald Moir ruled that although Hutchinson’s actions were fraudulent and “dastardly,” they did not constitute sexual assault, and thus found him not guilty.
At the 2009 trial, 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 Crown appealed Judge Moir's decision, successfully arguing that the woman had not agreed to unprotected sex, even though the sex was consensual, and in 2011 Hutchinson was convicted of the lesser charge of sexual assault and sentenced to 18 months in jail.
That ruling was appealed to the Nova Scotia Court of Appeal, which ordered a new trial.
At the Appeals Court hearing, defense lawyer Luke Craggs argued that if Hutchinson’s conviction was allowed to stand it could set a precedent to 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 they had no intention of creating children and their sexual partners told them there was no possibility of a pregnancy.
However, the Nova Scotia Court of Appeal upheld the sexual assault conviction in a 4-1 split decision on the basis that condom protection was an “essential feature” of the sexual activity, and therefore the complainant did not consent to the “sexual activity in question.” The dissenting judge held that there was, in fact, consent to the “sexual activity in question,” but that a new trial was required to determine whether consent was invalidated by fraud.
The one dissenting vote allowed Hutchinson to appeal the case to the Supreme Court.
In upholding the conviction, the Supreme Court states that “at its core, this case concerns the right … to determine how sexual activity will take place,” noting that “society’s commitment to protecting a person’s autonomy and dignity requires that individuals have the right to determine who touches their body, and how the touching will occur.”
In reaching its decision the Supreme Court noted, “the complainant agreed to engage in sexual activity in a certain manner, that is, sexual intercourse with an intact condom. Hutchinson deliberately sabotaged the condom without her knowledge or agreement. The fact that she only learned of the deliberate sabotaging after the sexual activity took place, is of no relevance. What is relevant is what sexual activity she agreed to engage in with Hutchinson and whether he stuck to the bargain.”
The court determined, “in this case, he did not. Since the complainant did not agree to how she was touched at the time it occurred, consent within the meaning of s. 273.1(1) [of the Criminal Code] did not exist.”
Gwen Landolt, national vice-president of REAL Women of Canada, said the decision appears to be applied in an unbalanced way toward men, suggesting it may not be applied the same way toward women if they are dishonest about their use of birth control.
“The decision is very one-sided,” Landolt told LifeSiteNews, “but it should work both ways, and we wonder whether in future the court will apply it equally to both men and women. Section 28 of the Charter says that it should apply equally to male and female persons, but the court has made a very definite decision to look away from Section 28 if it's not convenient for the woman's advancement.”
Landolt pointed out, moreover, that the court totally ignored the fate of the child conceived from the actions of the two people, which sends the message that the procreative aspect of sexual union has been totally supplanted by the pursuit of pleasure.
While Hutchinson had hoped to conceive a child with the woman to save his relationship with her, Landolt observed that, for the woman, “the court is saying in effect that you have to know the consequences of your actions, but you can shut off the consequences. In other words, the court is saying it's great to have all the pleasure of sex, but if you don't want to have any consequences you don't have to have them.”
“It goes to show what this world has degenerated into – that sexuality is now solely for pleasure and not for what it was intended, which is to have children. The court is reinforcing that separation between sexuality and its natural consequences,” Landolt concluded.
According to Halifax’s Chronicle Herald Hutchinson was granted bail in January 2013 pending the outcome of the Supreme Court appeal, but was required to turn himself in at the Dartmouth jail.
The full text of the Supreme Court judgment in the case of R. v. Hutchinson is available here.