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article imageCourt: Man who poked holes in condoms guilty of sexual assault

By Arthur Weinreb     Mar 8, 2014 in Crime
Ottawa - The Supreme Court of Canada upheld the conviction of a man for sexual assault after he punctured condoms he used in an attempt to get his girlfriend pregnant and save their relationship.
Canada's top court handed down its unanimous decision in the case of R v. Hutchinson yesterday. The justices found although Craig Jaret Hutchinson's girlfriend consented to have sexual intercourse with him, she did so with him using a condom. Poking holes in the condom so it would not prevent pregnancy constituted fraud and negated the consent.
In 2006, Hutchinson believed his relationship with his girlfriend was about to end. In an attempt to save it, he punctured holes in the condoms the couple used hoping she would get pregnant and their relationship would be saved. And his girlfriend did get pregnant. A few days after the woman found out about the pregnancy, she had an abortion.
After Hutchinson and his girlfriend broke up, he texted her and told her what he had done. He was afraid she might use the condoms with someone else and get pregnant. His girlfriend went to the police and he was charged with aggravated sexual assault.
Hutchinson was initially acquitted of the charge by a judge who called his actions "dastardly." The Crown appealed and after a second trial, the now 43-year-old was convicted of sexual assault and sentenced to 18 months in jail.
Hutchinson appealed his conviction and sentence to the Nova Scotia Court of Appeal. In January 2013, the appellate court dismissed his appeal, finding the woman did not consent to the sexual activity that took place. One justice dissented, ruling the girlfriend had consented to sex and a new trial was ordered to establish whether or not that consent was vitiated.
The fact that one justice dissented gave Hutchinson an automatic right to appeal to the Supreme Court of Canada.
The Supreme Court ruled putting holes in the condoms constituted fraud and as a result, no consent to sex was obtained. She chose not to become pregnant and did not consent to having sexual intercourse with condoms that were tampered with so as to allow pregnancy to occur. She had the right not only to be touched but how she would be touched. The court also held the Crown did not have to prove beyond a reasonable doubt the pregnancy resulted from a condom that had been tampered with.
Not every lie told to a woman to get her to have sex constitutes fraud. Only those that carry a significant risk of harm can be considered as negating the consent to sexual intercourse. "Harm" was defined not only as physical harm but something such as a pregnancy that would cause profound changes in a woman's body.
In light of the ruling, legal experts disagreed as to whether a woman who lied to a man about taking birth control could be guilty of sexual assault. One said many men suffer psychological harm from being the father of an unwanted baby while another said the court would limit such charges to situations where there is bodily harm.
Hutchinson was out on bail and surrendered into custody the evening before the court released its decision. He must now serve the remainder of his 18-month sentence.
More about Craig Jaret Hutchinson,, Condoms, sex obtained by fraud, Sexual assault, Supreme court of canada
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