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Man’s refusal to wear condom after agreeing to cancels out consent

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An Ontario court has ruled that a man who had unprotected sex after agreeing to wear a condom committed sexual assault because his behaviour invalidated his sexual partner’s consent.

In a recent ruling, a judge found Anibal Rivera’s actions amounted to fraud and caused a significant risk of serious bodily harm.

Ontario Superior Court Justice Nathalie Champagne said not wearing a condom against another person’s wishes usurps that individual’s sexual autonomy and their right to make decisions about how they engage in sexual activity.

Court heard Rivera, of Valleyfield, Que., and a woman, who cannot be identified, met on the dating website “Plenty of Fish” in October 2017 and arranged to meet at her Cornwall, Ont., home for a sexual encounter a few days later.

Prior to their meeting, court heard the woman texted Rivera to tell him condoms, which she used as birth control, were mandatory and that “no means no.” Rivera agreed to those terms.

The woman told the court she reiterated her rules during their encounter but Rivera proceeded without a condom against her wishes, insisting he was “clean.” Rivera testified the woman had agreed to go ahead without a condom as long as he did not ejaculate inside her.

Prior to their meeting, court heard the woman texted Rivera to tell him condoms, which she used as birth control, were mandatory and that “no means no.” Rivera agreed to those terms.

The woman told the court she reiterated her rules during their encounter but Rivera proceeded without a condom against her wishes, insisting he was “clean.” Rivera testified the woman had agreed to go ahead without a condom as long as he did not ejaculate inside her.

Though the pair had planned on Rivera staying the night, court heard he left after a few minutes of small talk.

The woman told the court she went to a hospital the next day to conduct several tests, including for pregnancy and sexually transmitted infections, as well as a sexual assault kit. She contacted police a few days later.

Before his first interview with police, Rivera drafted a written statement in which he said the complainant had initiated unprotected sex, court heard. He later admitted during cross-examination that he had lied in the statement.

“This is a case of ‘he said, she said’ which raises issues of credibility and reliability,” Champagne wrote in her ruling. “Mr. Rivera’s evidence gives rise to serious issues regarding his credibility and reliability.”

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