Was interested to hear on CBC radio’s The Current this morning about the appeal in this Nova Scotia case, now on reserve at the NSCA. R v. Hutchinson, 2011 NSSC 361 involved a man who deliberately and secretly damaged condoms because he wanted his girlfriend to get pregnant, and she did not want to have a child. There are some complexities in the case (like a finding of fact that she did not in fact become pregnant through the damaged condoms, but because a false positive home pregnancy test prompted the couple to give up on birth control altogether). In any case, Mr. Hutchinson is appealing his conviction on sexual assault (he was charged with aggravated sexual assault).
One of the things that is really bothering me about the commentary (both on the radio and in the article below from the Halifax news) is that some people are assuming that if the charge/conviction are appropriate that they would be equally appropriate in the case of a woman who sabotaged or lied about birth control and had sex with a man. I don’t deny that this could be seen as the same thing. But surely we understand the difference between the consequence to a man (genetic connection to child, possible liability for child support, etc) and to a woman (sperm in her body which could lead to conception and pregnancy, plus the consequence of being a parent). Again, I’m not arguing that these couldn’t or shouldn’t be treated the same way in law, but could we please acknowledge the differences between becoming pregnant though this kind of sabotage and making someone pregnant due to sabotage?
Anyway, I don’t feel ready to comment on the merits of the claim that lying about birth control (because you deliberately sabotaged it) on the part of the man vitiates consent to sexual activity or amounts to aggravated sexual assault. But I did come across a comment, Birth Control Sabotage as Domestic Violence: A Legal Response, today, on SSRN. That whole transit of Venus thing must have lined up some coincidences in the world. And other madness like Americans (other than Ruthann Robson) writing about Canadian law!
Written by a law student at Berkeley, the article argues in favour of criminalizing birth control sabotage, but not, it appears, through existing [US] provisions. It closely considers the first trial and appeal in the Hutchinson case (starting at p27). For clarification about the progress of the Hutchinson case, the Chronicle Herald’s Clare Mellor, June 5 (from the article linked above):
The case, which has been before the courts for several years, has involved two trials. In 2009, a Nova Scotia Supreme Court judge found Hutchinson not guilty of aggravated sexual assault, but the Nova Scotia Court of Appeal overturned that decision and ordered a new trial.
In 2011, Hutchinson was found not guilty of aggravated sexual assault but guilty of the lesser offence of sexual assault.
While the woman did not consent to sexual intercourse with damaged condoms, the Crown failed to prove that her pregnancy was a result of having had sex using those condoms, the trial judge said at the time.
On Monday, the case was heard by a special five-member appeal court panel headed by Chief Justice Michael MacDonald, instead of the usual three-member panel.
Shane Trawick University of California, Berkeley – School of Law
This Comment responds to a series of recent studies linking domestic violence to birth control sabotage — a phenomenon where male partners destroy or manipulate contraceptive devices to force pregnancy, attempting to hold their female partners captive in a violent relationship. Birth control sabotage can take many forms, including the destruction of birth control, the piercing of condoms, or the forceful removal of contraceptive vaginal rings or intrauterine devices. Its existence begs two questions: what legal remedies are available to victims of birth control sabotage, and what policy steps should be taken to limit its occurrence? The absence of legal scholarship resolving these questions is glaring, and virtually no legal scholarship addresses the intersection of birth control sabotage and domestic violence. This Comment contends, first, that the recent studies linking birth control sabotage and domestic violence provide a sufficient justification for labeling sabotage as an intentional, fraudulent misrepresentation tort claim. Second, this Comment normatively argues that state legislatures ought to act quickly to criminalize birth control sabotage. As sabotage can now be understood as an act of violence in continuing domestic violence, criminalization and incarceration are crucial in preventing further abuse. While legal remedies for birth control sabotage have been severely limited in the past, creative attorneys and motivated legislators should address this important issue to improve the lives of survivors and their families.
Of course there are also links to other cases about the context of sexual activity and how it might or might not vitiate consent, such as Mabior and DC (french only) in which appeals to the SCC have been heard and decisions are reserved. Both are cases in which HIV+ people did not disclose their status to sexual partners.