Supreme Court will hear case of man convicted of sexual assault for piercing condoms

Experts say the case could have far-reaching implications for litigation involving sexual assault, consensual sexual activity, and birth control deception, as well as family law.
Wed Nov 13, 2013 - 7:20 pm EST

OTTAWA, November 13, 2013 ( - A court case that could have far-reaching implications for litigation involving sexual assault, consensual sexual activity, and birth control deception, as well as family law, is being heard by the Supreme Court of Canada.

The high court is hearing the appeal of Craig Jaret Hutchinson, a Nova Scotia man convicted of sexual assault for secretly poking holes in his girlfriend's condoms.

The case has been going through progressively higher courts after Hutchinson was originally acquitted of a charge of aggravated sexual assault in 2009, when NS 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 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 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, defense lawyer Luke Craggs told the court 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.

“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 at the time. “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.

Earlier this year, the Nova Scotia Court of Appeal upheld the sexual assault conviction in a 4-1 split decision. The one dissenting vote allowed Hutchinson to appeal the case to the Supreme Court.

The Supreme Court decision in the Hutchinson case could have broader implications for issues of sexual consent and risk of bodily harm.

The HIV-AIDS Legal Network, which has been granted intervenor status, suggested to the court that their decision should be based on a Supreme Court ruling that found people who are HIV-positive do not need to tell their sex partners they have the disease, as long as they have low levels of the virus and use a condom during sexual intercourse.

The case involved former Winnipeg resident Clato Lual Mabior who in 2008 was charged with nine counts of aggravated sexual assault based on his failure to disclose his HIV-positive status to nine plaintiffs, one of whom was reportedly only 12 years old.

Under previous law, HIV-positive people who did not tell partners they had the virus could be charged with aggravated sexual assault, for which the maximum penalty is life in jail.

Mabior was convicted on six of the nine counts and sentenced to 14 years in prison. An appeal court overturned four of the six convictions, on the basis that he had sexual intercourse using a condom and had a low viral load, which negated any risk of harm. The Crown appealed the acquittals, although Mabior was deported to Sudan in February 2012 after serving a reduced sentence.

In October 2012, the Supreme Court overturned Mabior's convictions in a 9-0 ruling which said that the “realistic possibility of transmission of HIV is negated” if the infected person has a “low viral load and uses a condom.”

According to a Canadian Press report at the time, Supreme Court Chief Justice Beverly McLachlin, well known for activism on Canadian social issues, questioned prosecutors about whether a requirement to disclose the disease to sex partners places too onerous a burden on HIV-positive people in light of medical advances in treatment of the incurable infection.

The Supreme Court is expected to reserve its decision in the Hutchinson case.