A Man Who Refused To Wear A Condom Committed Sexual Assault, Ontario Judge Rules

If a man refuses to wear a condom during sex, against his partner’s wishes and after agreeing to do so, it is sexual assault, according to an Ontario court. Superior Court Justice Nathalie Champagne ruled that when Anibal Rivera didn’t use a condom, he violated his sexual partner’s autonomy and therefore his actions “amounted to fraud and caused a significant risk of serious bodily harm,” reports The Canadian Press.

Rivera, from Valleyfield, QC, met up with his victim, a woman who cannot be identified, at her home in Cornwall, ON, after arranging to meet on the dating site Plenty of Fish. Before the encounter, the woman told Rivera via text that condoms were mandatory, and he agreed. The woman testified that she restated the terms in person but that Rivera proceeded to have sex with her without a condom and without her consent, telling her he was "clean." Rivera testified that the woman agreed to have sex with him as long as he pulled out before ejaculating. Rivera left the victim’s home after a few minutes of small talk.

“In my view, Mr. Rivera led the complainant to believe he would wear a condom as he had previously agreed to do so and at the last minute, he penetrated her without a condom telling her it would be OK,” Justice Champagne said in her ruling. “I find his failure to wear a condom increased the complainant’s risk of pregnancy and constitutes a significant risk of bodily harm … Her consent was therefore vitiated by this action.”

The day after the event in question, the woman went to the hospital to get pregnancy and STI tests and conducted a sexual-assault kit. A few days later, she contacted the police. All of these details were presented to the court before Justice Champagne made her ruling.

Details such as the small talk after the assault and the few days it took the victim to bring the case to the police are the kind of factors that in the past have been used against sexual assault accusers to discredit their accounts, leading to victim blaming and unjust rulings.

“We see this in multiple sexual violence cases that come up. We’ve had situations where time after time, it’s the person who has been harmed whose actions are really judged,” sexual violence educator and advocate Farrah Khan tells Refinery29. “There is supposed to be a ‘normal’ way you react to sexual violence, which is crying, screaming, running away or fighting back but, in fact, the most common reaction to sexual violence is freezing. I hope we see more judges who have an understanding of that.” Khan says that Justice Champagne made a “trauma-informed” decision that took into account the emotional state of the victim.

In her ruling, Justice Champagne said there was no reason to base her decision on the woman’s actions after the encounter.

“It would be inappropriate for me to do so and would invoke myths and stereotypes about how victims of sexual assault should act,” she said.

Khan says other myths include the idea that people who are assaulted will always cry and act hysterically after the attack, that sexual violence only includes rape that leaves physical cuts or bruises, and that victims lie about being assaulted (in fact, the number of false sexual assault reports is very low and most assaults go unreported).

Justice Champagne expanded on her ruling and said that the victim’s actions after the assault were logical steps to protect her safety and privacy.

"It stands to reason that a complainant might make small talk to keep things calm and avoid unwanted contact,” she said. “It would not be unreasonable for a complainant to take some time to consider whether or not to proceed with a complaint given the stress and scrutiny of intimate details of one's life involved in the criminal court process."

“Here’s a woman who was taking control of her sexual life, like so many of us do,” Khan says of the victim in this case. “She communicated what she wanted and then she gets sexually assaulted. There’s no one way to survive, heal, or respond to sexual violence and that’s what the judge was affirming and that’s why [this ruling] is so powerful.”

This case comes just days after public outrage over a U.S. family court judge who showed sympathy towards a 16-year-old accused rapist because he came from a “good family” and did “extremely well” in school.

Khan hopes Justice Champagne can be an example to other judges and an illustration to support the need for Bill C-337, the legislation proposed by former federal Conservative leader Rona Ambrose that would require anyone seeking a federal judicial appointment to go through mandatory training on sexual assault.