Condom piercer's sex crime appeal goes to Supreme Court

[jimmy olsen]

While I think this should be illegal, for some reason I really don't like it being labeled sexual assualt, because that implies violence or some kind of coercion. I would prefer the crime getting it's own unique name. 

http://www.cbc.ca/news/canada/nova-scotia/condom-piercer-s-sex-crime-appeal-goes-to-supreme-court-1.2417491

Condom piercer's sex crime appeal goes to Supreme Court
Craig Jaret Hutchinson convicted in December 2011 and sentenced to 18 months in prison

By Blair Rhodes, CBC News Posted: Nov 07, 2013 7:50 AM AT Last Updated: Nov 06, 2013 10:29 PM AT

The Supreme Court of Canada is about to hear an appeal in the case of Craig Jaret Hutchinson, a Nova Scotia man convicted of sexual assault for poking holes in his girlfriend's condoms in a bid to salvage his relationship with the woman.

Hutchinson's case has been dragging through the Nova Scotia court system for more than six years, including two trials and two appeals.

In the summer of 2006, Hutchinson thought he could save his flagging relationship by getting his girlfriend pregnant. He surreptitiously poked holes in her condoms, and later urged her to start taking pregnancy tests. The second test came back positive.

It was only after the positive pregnancy test that Hutchinson admitted to the sabotage. Things did not turn out as he'd hoped — his Halifax-area girlfriend broke off the relationship, called police and had an abortion. A publication ban protects her identity.

"It was a bit of a toxic relationship," Luke Craggs, Hutchinson's lawyer, said in an interview this week.

"He lost his sense and he did some things which he regretted, which he isn't pretending aren't bad. But things which he has said and has said throughout just are not criminal."

The judge at Hutchinson's first trial agreed, calling his actions "dastardly," but acquitting him. The Crown appealed that decision and Hutchinson was convicted in December 2011 at his second trial.

That conviction was upheld on appeal, but the Nova Scotia Court of Appeal split on its decision, with one justice who dissented. That gave Hutchinson an automatic right to appeal, leading to this week's appearance before the Supreme Court.

Consent is the issue, says Crown

Jim Gumpert, the Crown prosecutor, said the issue for the Supreme Court is consent.

"What's important in this case is the issue of whether or not the very fact of poking the holes surreptitiously, using the condoms in sexual intercourse unbeknownst to the victim, if that is sufficient to remove consent," Gumpert said.

"The argument that the Crown had, that I had in the case was clearly yes. The majority of the Court of Appeal agreed with that."

Hutchinson's case has national significance. HIV and AIDS groups have been granted intervenor status.

Craggs said the AIDS groups are worried that if Hutchinson's conviction stands, it could affect the broader issue of consent and risk — and determining whether the victim was exposed to a significant risk of bodily harm.

Pregnancy and abortion do not meet the legal test of "significant risk" and AIDS groups are concerned that could also affect people who are HIV-positive, said Craggs.

"Something like ... mutual masturbation where there's no risk of transmission, but the person on the other side of it might say, 'Well, I wouldn't have consented to that if I had known.'

"Even though they were never put in any danger, their preference not to engage in sexual activity of any type — whether there's a risk of transmission or not, with a person who's HIV-positive — that would then become a crime under the interpretation from the Nova Scotia Court of Appeal," he said.

The Crown disputes that interpretation.

"The purpose of our appeal is not to deal with HIV status. That's not the facts in our case," Gumpert said.

"My response in the Supreme Court of Canada is the HIV issues would have to be dealt with in another case where those facts are clearly before the court."

'Sheer emotional drain'

Gumpert said the two concerns are different.

"There's a distinction between someone who says or doesn't disclose their HIV status and someone who surreptitiously changes around the physical characteristics of the sexual activity in which they engage," he said.

"We're saying the HIV status thing is a grey area that should be dealt with in another case."

Hutchinson is free on bail pending the outcome of this appeal. At his trial, he was sentenced to 18 months in jail. He also gave a DNA sample and his name was placed on the national sex offender registry.

"It makes it incredibly difficult for him to get on with his life," Craggs said.

"If he wants to get a job, there's the whole issue of him being a convicted sex offender, which stands in his way. He has difficulty committing to employment long term because he's out on bail right now, but there's the looming prospect of losing the appeal and having to go back to jail.

"Of course, there's just the sheer emotional drain on himself, his family, he has a daughter. It takes a huge toll."

The Supreme Court is expected to reserve its decision after Friday's hearing.

[Tonitrus]

"I wanna get you pregnant so you will be with me forever" = fraud.  Maybe not even criminal, but could definitely sue the hell out of the guy.
"I wanna give you HIV" = attempted murder.

I am assuming the poked-hole condom sex was consensual, so sexual assault should be off the table.  And even with condoms, there is always the risk of accidents/pregnancy/disease transmission.  So if you're going to engage, you gotta be prepared for the warp core breach.

[Ideologue]

Sounds like sexual assault to me.

Deliberately creating a situation where pregnancy is more likely and then defrauding your partner obviates consent and is rape.  Maybe not rape-rape.  But it's certainly immoral and there's evidence enough that I don't mind it being criminal (although it should be treated, much as Tim says, as a lesser degree form of sexual assault).

Similar thing happened to my ex-ex-girlfriend.  Not condoms, but her husband deliberately ejaculated inside her (a slightly messier issue, ha ha) against her explicit desires not to have that happen.  There are administrative concerns with actually criminalizing unwanted creampies, but there's no doubt in my mind that, morally, it constitutes a form of sexual assault.

[MadImmortalMan]

Condom sabotage should equal rape, no matter who does it.

[Ideologue]

Condom sabotage should equal rape, no matter who does it.

I would like to see the "Sure, I'm on the pill" cases that are set to flood Canada's courts, too.

[Eddie Teach]

It's rape in the same way that lying about being Jewish is rape.

[CountDeMoney]

Things did not turn out as he'd hoped — his Halifax-area girlfriend broke off the relationship, called police and had an abortion.

LOL PWN3D

"It was a bit of a toxic relationship," Luke Craggs, Hutchinson's lawyer, said in an interview this week.

So many Languish Lawyers could do better than that.

[Ideologue]

It's rape in the same way that lying about being Jewish is rape.

Wrong.

[Eddie Teach]

It's rape in the same way that lying about being Jewish is rape.

Wrong.

As in, neither are rape. Geeze.

[MadImmortalMan]

As in, neither are rape. Geeze.

Wait until some condom-piercer has a kid by you and then decides to take you for child support before you decide its rape or not.

[Josquius]

I'd agree it's not rape. Rape is about sex, not pregnancy.
The sex was fully consensual, the pregnancy was not.
I'd agree with calling it fraud. Sexual fraud.... Should that be a thing?
The trouble I see with this is it could be opening a can of worms every time a bitch has an unplanned pregnancy.

[garbon]

every time a bitch has an unplanned pregnancy.

[Ideologue]

It's rape in the same way that lying about being Jewish is rape.

Wrong.

As in, neither are rape. Geeze.

I know what you meant.  Still wrong.

The two fact patterns are wholly distinct.

The latter, like lying about income or weight, is lying about stuff that would harm or cancel the relationship, which we are not yet prepared to regulate (perhaps, eventually, we will, but not now ).  The former, condom piercing (or otherwise defrauding a partner about the likelihood of pregnancy--or disease transmission), would cancel the decision to have sex at that moment, regardless of how one feels about the general relationship.

[Ideologue]

every time a bitch has an unplanned pregnancy.

He's from Barcelona.

[Tonitrus]

It's rape in the same way that lying about being Jewish is rape.

Wrong.

As in, neither are rape. Geeze.

I know what you meant.  Still wrong.

The two fact patterns are wholly distinct.

The latter, like lying about income or weight, is lying about stuff that would harm or cancel the relationship, which we are not yet prepared to regulate (perhaps, eventually, we will, but not now ).  The former, condom piercing (or otherwise defrauding a partner about the likelihood of pregnancy--or disease transmission), would cancel the decision to have sex at that moment, regardless of how one feels about the general relationship.

What if the condom accidentally comes off during especially exuberant copulation?  Could we have a degree of pregnancy-fraud-rape that comes down to the equivalent "manslaughter" or reckless-endangerment level?