Men and women sometimes lie about contraception. A woman who does not use birth control might say she does; a man who agrees to wear a condom might then sabotage or remove it. Motivations vary—a person may be trying to trick their partner into pregnancy, to punish them, or make the relationship permanent. A person may just feel entitled to unprotected sex, for reasons of pleasure or power, whatever their partner’s views. When these lies lead to, or happen during, sex, the law struggles with whether the liars should be liable.
Other kinds of lies attract legal consequences. A lie about identity—a twin, let’s say, who climbs into his brother’s girlfriend’s bed—is very difficult to defend. In that case, the victim did not consent to the sexual act because her consent hinged on the perceived identity of her partner. Similarly, when several women underwent a gynecological exam by a man who was not, it turned out, a doctor, they were found to have not consented to the “exam” at all; consent to a medical procedure is not consent to non-medical touching. In another case, a doctor passed off his friend, a nightclub musician disguised by a lab coat and stethoscope, as an observing intern, to educate him on the “facts of life.” The patient had consented to medical treatment, wrote the court, but “in truth the nature of the act was partly treatment and was partly an act done to satisfy the curiosity of a stranger masquerading as an intern.”
In these cases, the act that happened was not agreed to, and the absence of agreement justified liability. A woman agreed to be intimate with her boyfriend, not his lookalike; to a medical procedure performed by a doctor, not a hack; to being observed by a medical intern, not an imposter. But what if the lie is not about being a doctor, but about being a lawyer? About being rich? A virgin? A Christian? Not being married? Not being a parent? What if the lie is promising to be monogamous, then cheating? Promising to use a condom, then poking holes in it? At what point does a lie about a feature of the act mean it is no longer the act agreed to?
The last item on that list—contraception—brings these questions into focus. Contraception, and the right to require its presence or agree to its absence, is obviously an intimate subject and a critical feature of consent. But our law has had difficulty measuring lies about contraception against established categories of sexual deception. Protected sex could be considered legally different from unprotected sex—just like sex with one’s boyfriend is different from sex with his twin, or like vaginal sex is different from anal sex. Or the presence or absence of contraception might be legally peripheral, atmospheric—like sex with or without the lights on. Put another way, we agree that when a woman says yes to sex with her boyfriend, if he’s not her boyfriend, she hasn’t said yes. We still debate whether saying yes to sex with a condom ought to be any different.
One way to answer that question is to ask people who have been lied to. Contraception deception sometimes manifests as “stealthing”—the non-consensual removal of a condom prior to or during sex. Alexandra Brodsky recently concluded in the Columbia Journal of Gender and Law that stealthing is the same as any other non-consensual sexual act; it is, to use the words of one of Brodsky’s interviewees, “rape-adjacent.” Victims of stealthing interviewed for Brodsky’s study reported fears of unwanted pregnancies and sexually transmitted infections, but also, and more significantly, feelings of sexual disempowerment and violation. Brodsky found that stealthing is “overlooked” by American sexual assault law. The victims Brodsky spoke with were unsure whether they had experienced “merely boys behaving badly or a true moral wrong.”
Canadian courts have ruled on contraception manipulation and deception, but we have had difficulty justifying why and when these wrongs should be sanctioned. R. v. Hutchinson, a leading case in this area from 2014, dealt with an accused, Craig Hutchinson, who had poked holes in the complainant’s condoms. Before the matter went up to the Supreme Court of Canada, the Nova Scotia Court of Appeal summed up the legal issue like this:
The appellant, Craig Hutchinson, tried to trick his partner into becoming pregnant by poking holes in the condoms they used during intercourse. He knew full well that she did not want to become pregnant. In fact, she insisted on him wearing the condoms for that very reason. His actions were clearly reprehensible. But were they criminal?
The majority of the Nova Scotia Court of Appeal convicted Hutchinson of sexual assault, holding that there was no consent; the complainant had agreed to protected—not unprotected—sex. Under this analysis, sex with a (functioning) condom was legally different from sex without one. However, one member of the Court of Appeal, Justice Farrar, dissented, arguing that the complainant had agreed to the sexual activity—sex—but her consent was then cancelled out by Hutchinson’s fraudulent manipulation of the condoms.
The difference between these two routes to liability—no consent at all, as opposed to consent nullified by fraud—is not semantic. Only those frauds that expose a complainant to a risk of serious bodily harm vitiate consent. The latter route therefore affords quite a narrow protection. It’s also premised on a physical, mechanical view of what kinds of “sexual acts” people can consent to; a person agrees to sex, in other words, not sex with a condom.
When Hutchinson reached the Supreme Court of Canada, it resulted in a split decision. Both the majority and the dissenting justices agreed that Hutchinson had sexually assaulted his former partner, but they didn’t agree on why.
Like the majority of the Court of Appeal, the dissenting justices of the Supreme Court would have convicted Hutchinson on the basis that there was no consent to begin with, writing:
This case involves a woman who agreed to sexual intercourse with a condom. When a woman agrees to have sexual intercourse with a condom, she is consenting to a particular sexual activity. It is a different sexual activity than sexual intercourse without a condom.
But the majority of the Supreme Court thought the “no consent” approach stretched the provisions of the Criminal Code too far, creating too many potential anomalies in an area of law that requires certainty and restraint. What if Hutchinson had sabotaged his partner’s birth control pills instead of her condoms? What if he had lied about being sterile? What if a woman were to lie about being on birth control? Would those lies also change the act agreed to? Moreover, argued the court, the law had to target the right harm. “The whole concern of the complainant was pregnancy,” wrote the court, and her consent turned on “whether the risk of pregnancy was mitigated to a degree which she thought sufficient.”
As a result, our Supreme Court adopted the narrower, conceptually neater protection that results from the “cancelled consent” approach. It found that the complainant had consented to the sexual act, but that the sabotaged condoms had exposed the complainant to a risk of bodily harm—pregnancy—and as such her consent did not count.
The consequences of Hutchinson played out earlier this year in PP v. DD, a decision released recently by the Ontario Court of Appeal. In PP, the plaintiff and the defendant were in a brief sexual relationship that resulted in a child. The plaintiff alleged that the defendant had lied to him about being on birth control, and that this lie had both robbed him of the ability to choose the timing and circumstances of the birth of his first child, and exposed him to the significant expense of childcare. In PP, the plaintiff chose to seek a remedy in civil court—meaning, essentially, that he wanted damages, not the imposition of criminal liability—arguing that the defendant had defrauded him.
The plaintiff’s case in PP failed, mostly for policy reasons. Canadian law, like many other jurisdictions, is extremely reluctant to recognize any cause of action that might allow people to circumvent child-support obligations. But the Court of Appeal also commented on whether the plaintiff could advance a claim for sexual battery—the non-criminal counterpart of sexual assault. Relying on Hutchinson, the Court of Appeal concluded that the plaintiff’s consent to the sex he had with the defendant had not been cancelled out by her alleged fraud, because a woman who lies about being on birth control does not expose her male partner to any risk of significant bodily harm.
The requirement that, to cancel out consent to a sexual act, a fraud must expose the complainant to a risk of bodily harm is not found in the Criminal Code. It comes from R v. Cuerrier, a case from the Supreme Court of Canada decided nearly twenty years ago. Cuerrier dealt with whether choosing not to disclose that a person was living with HIV cancelled out the consent of his sexual partners. The majority of the Supreme Court of Canada struggled then with the same question in Hutchinson—how deception affects consent—and decided that our sexual assault laws should be extended to catch only those lies that create a risk of physical harm.
But that case, too, featured strong dissents, one by famed feminist Justice L’Heureux-Dubé, who argued that the majority’s interpretation missed the point of sexual assault law entirely. In Justice L’Heureux-Dubé’s view, fraud should be defined in relation to an individual’s consent, not their risk of experiencing harm. What mattered was not “the presence of physical violence or the potential for serious bodily harm,” she wrote, “but the violation of the complainant’s physical dignity in a manner contrary to her autonomous will.”
When it comes to deceptions and contraception, our courts have continued to focus on physical harm instead of physical dignity, on the risk faced instead of the agreement breached. But the interviewees in Brodsky’s stealthing study were clear that what happened to them was not at all what was agreed to; that one’s sense of sexual autonomy includes the right to choose sex with a condom, not just sex; and that deliberate condom removal is a violation of that right. In her article, Brodsky also uncovered a deeply troubling connection between stealthing and sexual violence, reviewing online posts and discussions where “stealthers” justified the practice as an extension of male supremacy; a male “right”; something that women “deserve”; something that women “have to take.” This undercurrent of sexual violence helps explain the feelings of disempowerment and violation that victims reported—and it is one that goes unrecognized, and undeterred, under our current legal model.
While some cases will feature the requisite risk of harm to ground a conviction, others may lack it—where there is no possibility of pregnancy, for example, as with same-sex partners, or women who are on birth control or not capable of having children. Justice, in a sense, is something gambled on the presence of a physical risk, not promised by the law’s protection of sexual autonomy. Perhaps, in the law’s efforts to avoid uncertainty and promote restraint, it has continued to miss the point when it comes to what kinds of deceptive sex we punish, and why.