Supreme Court rules man who sabotaged condom was guilty of aggravated sexual assault

Craig Jaret Hutchinson was convicted of sexual assault after he admitted to sabotaging his girlfriend's condoms …

The Supreme Court of Canada has ruled and, perhaps unsurprisingly, it is not OK to punch holes in condoms to intentionally get your girlfriend pregnant so she doesn’t leave you.

That is a furious, cynical summary of a serious case debated by the Supreme Court and concluded on Friday, in which Craig Jaret Hutchinson was convicted of aggravated sexual assault after sabotaging condoms he used with his girlfriend in 2006.

The woman, who is not identified, became pregnant after unknowingly engaging in sex with a sabotaged condom. The incident occurred at a time when Hutchinson’s girlfriend had been considering ending the relationship. The sudden pregnancy temporarily extended the relationship, although she ultimately decided to break it off and have an abortion.

After the couple broke up, Hutchinson told her in a text message that there were holes in her condoms. "I wanted a baby with you so bad," he wrote in a text message, according to a National Post report from last year.

[ Related: Canadian guilty of sexual assault after piercing condom ]

The case has bounced through the justice system since then, first finding Hutchinson not guilty of assault, although even then his actions were declared “dastardly.” Last year, the Nova Scotia Court of Appeal ruled Hutchinson lacked consent for intercourse without a condom and found him guilty of aggravated sexual assault.

The Supreme Court ruled on Friday to uphold the charges of aggravated sexual assault "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.'"

[ Related: Consensual sex needs not just a ‘yes,’ but an ‘emphatic yes’ ]

The argument essentially came down to the definition of "sexual activity," which essentially determined what she had agreed to. The complainant argued that she agreed to have protected sex, an agreement that was violated by the defendant's sabotage of the condom. The Supreme Court unanimously agreed.

The ruling states:

What took place here was sexual intercourse with a sabotaged condom, a sexual activity to which the complainant did not consent.  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 Mr. Hutchinson and whether he stuck to the bargain.  He did not.

The case was held up against a similar conclusion found in the case of Henry Cuerrier, a B.C. man who tested positive for HIV in 1992 and had two subsequent relationships in which he neither disclosed his status nor used condoms. He was found guilty of aggravated sexual assault because the victims were unaware of his condition.

The bottom line is complete understanding between partners. What is accepted, what are the risks and what details are paramount to the acceptance of sexual activity?

In this case, the woman's request for a condom, specifically to avoid pregnancy, was of noted significance in the sexual activity she agreed to. Hutchinson’s purposeful subterfuge undermines that agreement.

It was sketchy, offensive and diabolical to begin with. Now the Supreme Court agrees that it was also criminal. It should come as no surprise to anyone.

(Photo courtesy CBC News)

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