Tag Archives: Hutchinson

Contraception & Consent: Hutchinson v. The Queen comes out this Friday

The SCC is set to release Hutchinson this Friday, so here’s a brief note + some links.   Hutchinson was committed for trial by Justice Derrick in the NSPC  R. v. Hutchinson, 2008 NSPC 79 (CanLII) The case was heard in 2009 by the NSSC R. v. Hutchinson, 2009 NSSC 51 (CanLII). That  decision was appealed and heard by the NSCA, R. v. Hutchinson, 2010 NSCA 3 (CanLII), which sent it back for a new trial.   Unfortunately I cannot find the report of the second trial (email me please if you have it) but Osgoode graduating 3L Meredith Bacal has a great piece from 2012,  here at theCourt.ca,  which describes the decision of Justice Coughlan – from which another appeal resulted.  This second appeal was heard in 2013 by the NSCA, R. v. Hutchinson, 2013 NSCA 1 (CanLII).  The 2013 decision was appealed to the Supreme Court.

here is the SCC summary of the case:

Mr. Hutchinson was charged with aggravated sexual assault for poking holes in the condoms he used with his partner, knowing she did not want to get pregnant. At his first trial, he was acquitted on a directed verdict, but the Court of Appeal reversed that decision and ordered a new trial. At retrial, Mr. Hutchinson was convicted of sexual assault because the trial judge found that while the complainant may have consented to the sexual intercourse, she did not consent to unprotected sexual intercourse. Mr. Hutchinson appealed his conviction, arguing that the complainant freely and voluntarily consented to having sexual intercourse with him and that his deception over the condoms, however reprehensible, was not enough to vitiate that consent. The majority of the Court of Appeal dismissed the appeal. Farrar J.A. would have allowed the appeal and ordered a new trial on the basis that the trial judge erred in finding that there was no consent under s. 273.1(1) of the Criminal Code, and that the proper approach would have been to determine whether consent was vitiated by fraud under s. 265(3)(c). (source)

The Supreme Court of Canada heard the appeal in November of 2013 (webcast here) with the bench consisting of the Chief Justice and Justices Abella,  Rothstein, Cromwell, Moldaver, Karakatsanis, and Wagner.

…..and it’s coming out on Friday.   The only intervener was Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario, although their Factum does not appear to be online either with the court or at either website (here, here). 

Other sources?  R v Mabior and R v DC: SEX, LIES, AND HIV: MABIOR AND THE CONCEPT OF SEXUAL FRAUD Martha Shaffer (Summer, 2013) 63 Univ. of Toronto L.J. 466 (mentions Hutchinson FN 6, and canvasses the surrounding legal context)

Birth Control Sabotage

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?

Appeal has social policy implications | The Chronicle Herald.

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.