McLachlin CJ and Cromwell J, joined by Rothstein and Wagner JJ
Concurrence
Abella and Moldaver JJ, joined by Karakatsanis J
R v Hutchinson, 2014 SCC 19 is a decision of the Supreme Court of Canada on sexual assault and consent under the Criminal Code. The Court upheld the sexual assault conviction of a defendant in a condom sabotage case, holding that the complainant's consent to sexual activity with him had been vitiated by fraud when he poked holes in his condom.
In the case Craig Hutchinson, the accused, had engaged in sexual intercourse with his partner, who had agreed on the condition that he use a condom. However, unknown to her, he had poked holes in it, resulting in the complainant becoming pregnant. On trial, he was convicted of aggravated sexual assault. He appealed to the Nova Scotia Court of Appeal, which upheld his conviction, with the majority holding that the use or non-use of a condom was an essential feature of sexual intercourse, and that the consent to one didn't apply to the other.
The Supreme Court, applying sections 273.1(1) and 265(3) of the Criminal Code, established a two part test to determine whether a complainant had consented to sexual activity. It held that courts must assess:
Did the complainant agree to the touching, it's sexual nature, and the identity of the partner (per s. 273.1), and if they did,
Was that voluntary agreement vitiated by one of the factors prescribed in s. 265(3)
With the section 265(3) factors being:
(a) the application of force to the complainant or to a person other than the complainant,
(b) threats or fear of the application of force to the complainant or to a person other than the complainant,
(c) fraud; or
(d) the exercise of authority.
With the Crown having the burden of proving beyond reasonable doubt that either criterion (1) is false, or that criterion (2) is true.
On the basis of this test, the majority upheld Hutchinson's conviction. However the Court, notably, refused to factor in the sabotage of the condom in the first branch of the test, rejecting the 'essential features' analysis of the Court of Appeal. The Majority held that accused cannot be held liable for sexual assault under 273.1(1) if the complainant consents to the specific physical act the accused performed on them.
The Court held that 273.1(1), which states "consent means... the voluntary agreement of the complainant to engage in the sexual activity in question", must be narrowly construed to avoid creating legal uncertainty. As such the "sexual activity in question" should only be interpreted to mean the specific physical act, and not to any other 'essential features' which the complainant may have based her consent on. Those, the Court said, would be best assessed under the "fraud" component of the 265(3) branch of the test.
Justices Abella and Moldaver wrote a concurring opinion, and dissented with majority on whether the condom sabotage should have been assessed under the first or second branch. They would have endorsed the Court of Appeal's 'essential features' analysis and considered it under the first branch.
Sexual assault is an act in which one intentionally sexually touches another person without that person's consent, or coerces or physically forces a person to engage in a sexual act against their will. It is a form of sexual violence, which includes child sexual abuse, groping, rape, or the torture of the person in a sexual manner.
R v Park [1995] 2 S.C.R. 836, is a Supreme Court of Canada case dealing with the mistaken belief defence – i.e. that the accused had an honest but mistaken belief that he had consent to engage in sexual relations with the complainant – and the role of the Canadian Charter of Rights and Freedoms in relation to sexual assault.
The Sexual Offences Act 2003 is an Act of the Parliament of the United Kingdom.
Criminal transmission of HIV is the intentional or reckless infection of a person with the human immunodeficiency virus (HIV). This is often conflated, in laws and in discussion, with criminal exposure to HIV, which does not require the transmission of the virus and often, as in the cases of spitting and biting, does not include a realistic means of transmission. Some countries or jurisdictions, including some areas of the U.S., have enacted laws expressly to criminalize HIV transmission or exposure, charging those accused with criminal transmission of HIV. Other countries charge the accused under existing laws with such crimes as murder, manslaughter, attempted murder, assault or fraud.
R v Cuerrier was a 1998 decision by the Supreme Court of Canada, which ruled that knowingly exposing a sexual partner to HIV constitutes a prosecutable crime under Canadian law.
In criminal law, consent may be used as an excuse and prevent the defendant from incurring liability for what was done.
The precise definitions of and punishments for aggravated sexual assault and aggravated rape vary from nation to nation and state to state within nations.
A rape shield law is a law that limits the ability to introduce evidence or cross-examine rape complainants about their past sexual behaviour. The term also refers to a law that prohibits the publication of the identity of an alleged rape victim.
R v Ewanchuk, [1999] 1 SCR 330 is a leading Supreme Court of Canada case concerning the defence of consent to a charge of sexual assault. The Court held that there was no defence of implied consent. The case is also notable for the controversy that arose between Justice John McClung and Justice Claire L'Heureux-Dubé.
Rape is a type of sexual assault initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, under threat or manipulation, by impersonation, or with a person who is incapable of giving valid consent.
The age of consent in the United States is the age at which a person may legally consent to engage in sexual activity. Each state and territory sets the age of consent either by statute or the common law applies, and there are several federal statutes related to protecting minors from sexual predators. Depending on the jurisdiction, the legal age of consent is between 16 and 18. In some places, civil and criminal laws within the same state conflict with each other.
Rape is a statutory offence in England and Wales. The offence is created by section 1 of the Sexual Offences Act 2003:
(1) A person (A) commits an offence if—
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. (3) Sections 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.
Rape by deception is a situation in which the perpetrator obtains the victim's agreement to engage in sexual intercourse or other sex acts, but gains it by deception, such as false statements or actions, including leading the target into illusory perceptions in order to get sex.
R v JA2011 SCC 28 is a criminal law decision of the Supreme Court of Canada regarding consent in cases of sexual assaults. The court found that a person can only consent to sexual activity if they are conscious throughout that activity. If a person becomes unconscious during the sexual activity, then they legally cannot consent, whether or not they consented earlier. In addition to the two parties, the Court heard from two interveners: the Attorney General of Canada and the Women's Legal Education and Action Fund (LEAF).
R v Evans and McDonald was the prosecution of two footballers, Ched Evans and Clayton McDonald, who were accused of the rape of a woman. On 20 April 2012, Evans was convicted and sentenced to five years imprisonment. McDonald was acquitted. Several people were later fined after naming the woman on Twitter and other social media websites.
S v Masiya is an important case in South African criminal law, decided by the Constitutional Court.
Non-consensual condom removal, or "stealthing", is the practice of a man removing a condom during sexual intercourse without consent, when his sex partner has only consented to condom-protected sex. Victims are exposed to potential sexually transmitted infections (STIs) such as HIV/AIDS, or unwanted pregnancies. Such behaviour may be therefore regarded as sexual assault or rape, and sometimes as a form of reproductive coercion. As of 2020, stealthing is punishable as a form of sexual violence in some countries, such as Germany and the United Kingdom.
Rape laws vary across the United States jurisdictions. However, rape is federally defined for statistical purposes as:
Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.
Sexual consent plays an important role in laws regarding rape, sexual assault and other forms of sexual violence. In a court of law, whether or not the alleged victim had freely given consent, and whether or not they were deemed to be capable of giving consent, can determine whether the alleged perpetrator is guilty of rape, sexual assault or some other form of sexual misconduct.
McNally v R [Crim 1051 (2013)], is a 2013 court decision in which the English and Wales Court of Appeals (EWCA) ruled that Scottish student Justine McNally's prior conviction of six counts of sexual assault by penetration would be upheld. McNally's sentence, however, was reduced. The convictions were made under the Sexual Offences Act 2003. Various other cases were explored to maintain the conviction, expanding the previously slim "rape by deception" laws. McNally v R was one of the first cases to display gender fraud or gender deception arguments.
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