Hutchinson told his girlfriend that he wanted a child with her, but she did not want to get pregnant. After the two split up, Hutchinson confessed to her that he had sabotaged the condoms they were using. The complainant testified that she would not have consented to have sexual intercourse with Hutchinson if she had been aware of the condition of the condoms. She ended up getting pregnant and having an abortion. After the abortion the complainant suffered extreme bleeding, blood clotting, and severe pain for about two weeks. Hutchinson was charged with aggravated sexual assault. The trial judge found there was consent to the application of force, the sexual intercourse, and that a trier of fact could not conclude that consent was vitiated because there was no evidence of a significant risk of serious bodily harm. Although the judge considered the evidence of the two doctors regarding the risks of complications during pregnancy, he made no finding as to whether the Crown presented any evidence of endangerment. The Crown appealed on the conviction.
- Is there a difference between consenting to protected sex and consenting to unprotected sex?
- If so, does the lack of consent to unprotected sex change the act to sexual assault?
- Are the effects of the abortion to be included in the harm caused by the sexual assault?
Appeal allowed, new trial ordered.
Roscoe, writing for the majority, held the trial judge erred in finding that consent as defined in s.273.1(1) had the same meaning as consent to the application of force in s.265(1)(a) of the Criminal Code. Since s.265 applied to all forms of assault, including sexual assault, and s.273.1 applied only to sexual assaults, the words "voluntary agreement ... to engage in sexual activity in question" must mean something more than consent to the application of force. The sabotaging of the condoms fundamentally altered the nature of the sexual activity in question. The complainant's consent could therefore be found not to be reasonably informed and freely exercised. Even if the trier of fact found that there was consent because the sexual activity in question was sexual intercourse, and not specifically protected sexual intercourse, the consequences of Hutchinson's deceit caused serious bodily harm to the complainant, thus satisfying the test for fraud vitiating consent. There was some evidence that the complainant's life was exposed to peril, danger, harm or risk as a result of the accused's sexual assault. The medical evidence supported a finding that there were numerous serious risks to the health and life of a pregnant woman. Since there was some evidence of endangerment or bodily harm, the directed verdict of acquittal should not have been granted.