High court upholds conviction in condoms case
The Canadian PressFriday, March 07, 2014
OTTAWA - The Supreme Court of Canada has unanimously upheld the sexual assault conviction of a Nova Scotia man who tried to trick his girlfriend into becoming pregnant by poking holes in her condoms.
Craig Jaret Hutchinson was sentenced to 18 month in jail in December 2011 after he pierced his girlfriend's condoms with a pin in 2006 so she would get pregnant and not break up with him.
The Halifax-area woman became pregnant and had an abortion, but later suffered an infection of her uterus that required treatment with antibiotics.
In Friday's 7-0 ruling, the high court ruled that Hutchinson deprived the woman of her ability to consent to sex.
"The accused's condom sabotage constituted fraud ... the result that no consent was obtained," Chief Justice Beverley McLachlin and Justice Thomas Cromwell wrote on behalf of the court. "We would therefore affirm the conviction and dismiss the appeal.
"We conclude that where a complainant has chosen not to become pregnant, deceptions that deprive her of the benefit of that choice by making her pregnant, or exposing her to an increased risk of becoming pregnant by removing effective birth control, may constitute a sufficiently serious deprivation for the purposes of fraud vitiating consent."
In January 2013, the Nova Scotia Supreme Court rejected Hutchinson's appeal that the sentence was harsh and excessive and that the woman voluntarily consented to have sex with him.
Hutchinson, 43, was originally found not guilty of aggravated sexual assault by the Nova Scotia Supreme Court in 2009.
That decision was overturned by the province's Appeal Court, which ordered a new trial. He was convicted in that second trial.
"In this case, while the Crown did not establish beyond a reasonable doubt that the complainant's pregnancy was the result of the damaged condoms, Mr. Hutchinson exposed her to an increased risk of becoming pregnant by using a faulty condom," the Supreme Court decision said.
"As the trial judge found, a condom with a pinprick in it is no longer effective birth control. This constituted a sufficient deprivation for fraud."
The ruling said that depriving a woman of the choice of whether to become pregnant or increasing the risk of pregnancy "is equally serious as a significant risk of serious bodily harm."
"Mr. Hutchinson insists that (the woman) freely and voluntarily consented to have sexual intercourse with him and his deception over the condoms, however dastardly, was not enough to vitiate this consent," said the 2013 ruling from the Nova Scotia Appeal Court.
"It is clear that protected sex was an essential feature of the proposed sexual act and an inseparable component of (the woman's) consent."
The Halifax Chronicle Herald reported Hutchinson had been granted bail pending the outcome of his appeal and that he was required to turn himself in at Dartmouth jail Thursday. The newspaper reported that defence lawyer Luke Craggs said his client has about 17 months and 10 days left on his jail sentence.