Ontario Superior Court Justice Nathalie Champagne has ruled that if a man refuses to wear a condom against his partner’s wishes and after agreeing to do so, it is a sexual assault. Anibal Rivera (“Rivera”) has been found guilty of committing sexual assault by proceeding to have unprotected sex after agreeing to wear a condom.
In October 2017, Rivera and a woman (who cannot be identified) met on a dating website and they agreed to meet at the woman’s home in Cornwall, Ontario for a sexual encounter.
Prior to their “date”, the woman texted Rivera and advised him that condoms were mandatory and that “no means no”. Rivera agreed to these terms.
In court, the woman testified that during their encounter she repeated “her rules”, however, Rivera proceeded to have sex with her without a condom, insisting that he was “clean”. He then left after a few minutes of small talk.
Rivera testified that the woman agreed to proceed without a condom as long as he did not ejaculate inside her.
The woman went to the hospital the next day for an evaluation and various tests, including tests for pregnancy and sexually transmitted infections, and a sexual-assault kit. A few days later, she contacted the police.
Rivera drafted a written statement before his first interview with police wherein he wrote that the woman had initiated unprotected sex. However, on the witness stand during his cross-examination he admitted that he had lied in his written statement.
THE ISSUE OF CONSENT
The issue at trial was whether the complainant consented to intercourse without a condom. Both the woman and Rivera testified in court.
In her ruling, Justice Champagne wrote:
This is a case of ‘he said, she said’ which raises issues of credibility and reliability. … In assessing the evidence, if I believe the account of Mr. Rivera, I must acquit. If I don’t believe Mr. Rivera but the evidence leaves me with a reasonable doubt, I must acquit. If the evidence does not leave me in doubt the offence occurred, I must assess whether the evidence proves the offence beyond a reasonable doubt. … Mr. Rivera’s evidence gives rise to serious issues regarding his credibility and reliability…
Although Justice Champagne did not believe Rivera’s claims that the complainant agreed to have sex without a condom, the Crown must still prove the alleged offence beyond a reasonable doubt.
The complainant testified to the following:
- She agreed to a sexual encounter.
- She insisted that condoms were required and “no means no”.
- She told Rivera to put on a condom prior to intercourse and he didn’t.
- She told Rivera to put on a condom a second time before the second act of intercourse and he didn’t.
- Rivera had vaginal intercourse with her without a condom followed by forced oral sex, followed by vaginal and anal intercourse with her without a condom.
Justice Champagne found that the woman’s evidence that she insisted that Rivera wear a condom and would not agree to sex without it is consistent with the conditions she had described in her text to Rivera and consistent with her undergoing tests at a hospital the next day.
The Judge found that the woman’s “evidence to be proof beyond a reasonable doubt that Mr. Rivera committed a sexual assault against her by failing to wear a condom and engaging in sexual intercourse with her”.
Justice Champagne went even further to say that if there is any uncertainty that failing to wear a condom amounts to a sexual assault in these circumstances, the complaint’s consent was discredited by fraud.
IMPACT OF THIS DECISION
Justice Champagne noted that she did not draw any negative conclusions regarding the fact that the Rivera and the woman made small talk after sex or that it took the woman a few days before contacting the police. She stated:
It would be inappropriate for me to do so and would invoke myths and stereotypes about how victims of sexual assault should act. … It stands to reason that a complainant might make small talk to keep things calm and avoid unwanted contact and it would not be unreasonable for a complainant to take some time to consider whether or not to proceed with a complaint given the stress and scrutiny of intimate details of one’s life involved in the criminal court process.
In my view, Mr. Rivera led the complainant to believe he would wear a condom as he had previously agreed to do so and at the last minute he penetrated her without a condom telling her it would be OK. … I find his failure to wear a condom increased the complainant’s risk of pregnancy and constitutes a significant risk of bodily harm … Her consent was therefore vitiated by this action.
Justice Champagne’s decision is being well-regarded as an example to be set to other judges in Canada.
It is also in line with the proposed Bill C-337, introduced by former federal Conservative leader Rona Ambrose, requiring those seeking a federal judicial appointment to go through mandatory training on sexual assault law, including rape myths and stereotypes about victims and the impact of trauma on memory.
We will continue to follow any developments in the case law or legislation that may arise from this latest decision regarding sexual assault, rape myths and stereotypes in this blog.
If you have been charged with a sexual assault offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience.