A Nova Scotia man in an appeal court was convicted of sexual assault for putting pin holes in condoms before having sex with his girlfriend. She became pregnant as a result. In the lower court he was acquitted of assault, but on appeal he was found guilty. Now the case is being re-examined in the Supreme Court of Canada.
At the Appeals Court, defense lawyer Luke Craggs told the court that if Hutchinson’s conviction was allowed to stand it could set a precedent to encourage litigation against anyone dishonest about their use of birth control and could “create undesirable results,” such as men refusing to pay child support because they had no intention of creating children and their sexual partners dishonestly telling them they were on birth control getting pregnant.
“I’m sure if you venture down to Supreme Court family division, there are all sorts of sour men down there who feel they shouldn’t be paying child support because they didn’t want the child in the first place,” Craggs said at the time. “That does seem to be one result that could flow from this.”
Crown prosecutor Jim Gumpert, after questioning by the appeal court judges, reportedly conceded that he believed a woman could also be charged with sexual assault for lying to her partner about taking the birth control pill.
“There are very unusual social policy issues and legal issues in this case,” Gumpert acknowledged.
Earlier this year, the Nova Scotia Court of Appeal upheld the sexual assault conviction in a 4-1 split decision. The one dissenting vote allowed Hutchinson to appeal the case to the Supreme Court.
The Supreme Court decision in the Hutchinson case could have broader implications for issues of sexual consent and risk of bodily harm.
Obvious cases involve not revealing HIV infection when having sex.
Under previous law, HIV-positive people who did not tell partners they had the virus could be charged with aggravated sexual assault, for which the maximum penalty is life in jail.
The Supreme Court is expected to reserve its decision in the Hutchinson case.