I’m told that
there are some people who need to use little untruths to advance their chance
of romantic success.
The most
famous example I can think of is George Kostanza in Seinfeld, 5th
season, episode 14: “The Marine Biologist”. Being thought of as a marine
biologist did indeed enhance George’s prospects, but it also led to a call to action of
another sort.
In R v Hutchinson, 2014
SCC 19 (7 March 2014) Mr Hutchinson’s untruth was of a more mundane kind: it
came down to saying, “This is a really good condom.”
In fact he
had put pin pricks in it, hoping to make his partner pregnant but knowing she
did not want that. The result was she did become pregnant.
Had the
complainant consented to the sexual activity?
The Court was
unanimous in dismissing the appeal, but for differing reasons. The majority
said yes, she had consented but her consent was vitiated by the dishonesty.
Consent had been given to the sexual activity in question, and consent does not
have to extend to the conditions or qualities of the act, such as birth control
measures. However there was dishonesty which resulted in serious bodily harm
[67] – [70], and this constituted the fraud that vitiated consent.
The minority
said no, there was no consent ab initio, because use of the condom was part of
the sexual activity and the complainant had the right to determine how she was
touched, how the sexual activity she engaged in was carried out. It was not
necessary to look for a vitiating factor such as fraud, as there was no consent
from the beginning.
The majority
found some difficulties with the minority reasoning [45] – [53]. How are the
boundaries of the sexual activity, the nature and quality of the act, defined?
