April 2014

Fraud-vitiated consent to sex constitutes a lack of consent

By Annie Charron

On March 7, 2014, the Supreme Court of Canada ruled in the Hutchinson case (2014 SCC 19), upholding Craig Jaret Hutchinson's conviction and 18-month jail sentence.

The facts of the case are as follows: the plaintiff consented to sex with Hutchinson and insisted that he use a condom to prevent pregnancy. Without the plaintiff knowing, Hutchinson poked holes in the condom, and the plaintiff became pregnant. He eventually admitted his actions to his partner, who ended up having an abortion and filing charges against him. Hutchinson was accused of aggravated sexual assault. The lower court found him guilty, and the Court of Appeal confirmed the ruling, though certain judges dissented.

The Supreme Court of Canada was therefore tasked with determining whether sabotaging a condom could lead to a lack of consent?the plaintiff's voluntary agreement to engage in the sexual activity under section 273.1(1) of the Criminal Code?or whether the sabotage constituted fraud under section 265(3)c) of the Criminal Code, leading to a lack of consent.

Was there sufficient deprivation to establish fraud? Since the plaintiff chose not to become pregnant, any deceit exposing her to an increased risk of pregnancy may represent sufficient depravation to constitute fraud, which vitiates consent under section 265(3)c). In this case, there was a lack of consent due to fraud.