Fully aware of the exact nature of the proposed sexual activityJanuary 9, 2013
That’s the language used. This shall become VERY interesting.
I have new stuff coming soon, but i couldn’t let this one pass up. No time to make a detailed post, just my emphasis in bold. The plot thickens…
[update:] now that i have a little extra time to devote to this, to any new readers of this post i want them to fixate on this particular comment
“..only gave her consent for protected sex with the intention to avoid conception, the court qualified Hutchinson’s actions as sexual assault.”
Craig Jaret Hutchinson who poked holes in girlfriend’s condoms loses court appeal
When their relationship started to go sour, Nova Scotian Craig Jaret Hutchinson decided a baby would heal the rift between him and his girlfriend.
There was a slight problem, however. His girlfriend didn’t want to have his child.
So when the Halifax woman learned she was pregnant in September 2006, she was “shocked.” Hutchinson, on the other hand, was thrilled.
He later confessed that he had poked holes in their condoms with a pin in order to intentionally get her pregnant.
Horrified, his girlfriend called the police. She later had an abortion and suffered a uterine infection as a result that had to be treated with antibiotics.
The 42-year-old man was charged with aggravated sexual assault. Though he was acquitted in 2009, the decision was overturned and after a subsequent retrial he was sentenced to 18 months in jail.
Hutchinson appealed the decision, as CBC notes, arguing that the sex was consensual and that his sentence was “harsh and excessive.”
His case went all the way to Nova Scotia’s Court of Appeal, which released a 4-1 majority decision on Thursday to uphold the sentence.
The moral questions involved in this case are clear: Hutchinson’s actions were appalling.
The legal questions, on the other hand, have sparked much debate.
As the National Post reports, Chief Justice Michael MacDonald articulated the majority court decision that the alleged victim must be “fully aware of the exact nature of the proposed sexual activity.”
Under the Canadian Criminal Code, sex without consent is considered assault. Because the woman — identified as N.S. to protect her identity — only gave her consent for protected sex with the intention to avoid conception, the court qualified Hutchinson’s actions as sexual assault.
The Court’s one dissenting voice, Justice David Farrar, expressed concern that this decision would create a “potential slippery slope” for women who stop taking birth control and get pregnant without their partner’s knowledge or consent.
“Expanding criminal liability in this way would represent a dramatic step backwards,” writes Justice Farrar.
However, Justice MacDonald countered that because pregnancy carries far greater consequences for the mother than the father, should the gender roles be reversed, the circumstances would not fit the same definition of assault.
It’s an argument that, while biologically correct, may not fully take into account the significant emotional and financial toll for the unwitting father of a child conceived under duplicitous circumstances.
On the other hand, the idea that men like Hutchinson may think they can legally get away with poking holes in condoms, potentially causing pregnancy or the spread of STDs, is a truly terrifying thought.
Meanwhile, Farrar’s dissenting opinion gives Hutchinson’s lawyer the option to take his case to the Supreme Court. So far no decision has been made in that regard.