That case also involved a complainant who said she consented to having sex but only if the accused wore a condom. Hutchinson, which established a test for analyzing consent. Kirkpatrick said the judge should apply the Supreme Court’s 2014 ruling in R. He claimed the Crown did not prove the absence of consent, because the complainant consented to the sexual intercourse, regardless of condom use. Kirkpatrick asked the judge to dismiss the charge against him due to lack of evidence. When the Crown finished presenting its case, Mr. ![]() At trial, the complainant testified that she had not consented to the sexual activity in question - in this case, intercourse without a condom. Section 273.1(1) of the Criminal Code defines consent as a person’s voluntary agreement to “engage in the sexual activity in question”. Kirkpatrick was charged with sexual assault. Kirkpatrick did not wear a condom, which she only realized after intercourse ended. Kirkpatrick wore a condom the first time. They had sexual intercourse twice one night. ![]() Kirkpatrick, but only if he wore a condom. In March 2017, Ross Kirkpatrick and a woman met online and then in person in British Columbia. ![]() The Supreme Court rules that when someone is required by their partner to wear a condom during sex but they do not, they could be guilty of sexual assault.
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