Oakvillian

And there we have the core of the issue. I can see how the argument works: if consent was given only because she believed the condom was intact, then as D says there was no consent, therefore an assault took place. But did she make an intact condom a condition of her consent? Did he assure her he hadn't tampered with it? Did he know that she would have withdrawn consent if she knew he'd made a hole in it? Without knowing way more details about the nature of their relationship and the history of their sexual interaction and intimate conversations, I wouldn't be able to say it was an assualt. My gut says it shouldn't be, but I can see how, legally speaking, it might be argued. Iain's right - this is the sort of thing that might be aired as "irreconcilable differences" in a divorce proceeding, but I'd hate to be the presiding judge for this case in a criminal court: the implications for precedent are pretty daunting.

Novocastrian

There's yet another complicating aspect to this one (as outlined by CBC 1 this morning). She took a home pregnancy test at her partner's urging while they were using the condoms and got what turned out to be a faulty positive. Rather than having the result checked by a clinic, they accepted it and then proceeded to have unprotected sex by mutual consent. It was only then that she actually got pregnant.

My take is that the NS Crown Prosecutor has overstepped his discretion, especially as the initial charge was aggravated sexual assault. The partner was found not guilty of that but guilty of sexual assault.

I think the plaintiff would be better off in civil court suing for damages due to having to have an abortion if anything.

Boy d

Ur issue of consent based on an intact condom is silly. There is a good faith test in consent, and one would assume that if a condom were desired, it should be in tact. Should one demand an HIV test before sex from consenting parties?

There appears to be some assumption here that assault should be violent or more forceful, but that is not the case in law. There are many instances of assaults with no contact at all....assault by tresspass, assault wkith weapon, robbery.....physical contact are not elements of these loffences.

In Canada there is a second problem. The attorney general has mandated that assailts in relationships be prosecuted in all instances where grounds exisit. Police and the crown have little choice to proceed. This is a result of a tendancy in the past to minimize such matters and write them off.

Novocastrian

These days, yes.

Boy d

This relates only to the aggravated nature of the offence and not the substansive assault. Pregnancy could be argued to be non trifling and dangerous, given the risks of child birth, and thus an aggravating factor..

I don't agree at all that he over stepped. There are many instances where someone may be found guilty of a lesser charge: murder vs manslauhghter or assault v s attempt murder.

Odd as it may be....all very sound in law.

ultrarunner

Is that before alcohol consumption at a bar/club? Surely there are spontaneous moments that happen when both sexes get caught up in lust and end up in the washrooms, car or a cheap motel?

Lord Vader

Interesting 3 part series

http://www.youtube.com/watch?v=MNhpyKTrptc

Clematis

I would say yes, because the woman would think that she would have some protection from a STD. On the issue of a pregnancy I would say that it was a violition of someones rights to take that choice away, that also counts for a woman saying that she is on the pill when she is not.

Boy d

It's an issue of fraudently obtained consent....which in the eyes of the law, means no consent. 265 (1), and 273 1 and 2 are the where you will find the elements of consent.

Consent

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority.

Accused’s belief as to consent

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.


The aggravated aspect comes into play if the assaults maims or disfigures or endangers life...child birth is certainly risky and could be argued as an aggravating factor.

Aggravated sexual assault

273. (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.

I used to work sex offences....no longer, thank god. Give me a straight forward murder any day. Most sex assaults end up being....he said/she said.

Oakvillian

You've certainly changed my mind. I was unaware of the finer points of the law - how refreshing to have a debate on these boards in which a knowledgeable and informed participant provides detailed evidence to support his point of view

Boy d

Well thank-you. I do have the advantage of having worked sex cases for a few years, although I never had one quite like this one!

I should imagine such cases are very rare.

el_richo

Will you be giving this advice to your daughter, or will you use Novo's

ExKiwilass

thanks for your input dboy. Very interesting to get your perspective on this.

ann m

Gotcha - understood.

Boy d

cheers....glad to be of some use for a change!