Poking a hole in a condom and getting the girlfriend pregnant because of the prank is considered a form of sexual assault, the Supreme Court of Canada ruled on Friday.
With the decision, the court dismissed the appeal by Nova Scotia resident Craig Jaret Hutchinson who was given an 18-month sentence in December 2011 and placed on the national sex offender registry. He had admitted that he damaged the condom of his girlfriend so she would become pregnant and not split from him.
Seven justices said that Mr Hutchinson's acts of sabotaging the condom exposed his girlfriend to higher risk of pregnancy and is fraud. There was lack of consent to pregnancy because of his fraudulent action.
However, three other justices said it was not a question of the girlfriend's consent invalidated by the fraud he committed, but if she consented to how their sex had taken place.
The girlfriend had insisted she did not want to become pregnant, but because of the holes in the condom, she became pregnant. But their relationship still ended after he admitted in text messages of his sabotage. She eventually got an abortion which caused her to suffer from uterine infection.
Luke Craggs, the lawyer of Mr Hutchinson, said that while they were disappointed by the court decision, the ruling placed a closure on the issue.
"I don't know if there are going to be any other cases like this. It's not every day that we normally hear about someone sabotaging the birth control that a woman was counting on," CBC quoted the lawyer.
The court had previously ruled that not disclosing one's marital status to a partner is only deception, but not strong enough to lead to a sex assault conviction. Even failure to disclosed HIV status is not ground for a sexual assault conviction if the risk of transmission is low.
The landmark decision, penned by Chief Justice Beverly McLachlin and Justice Thomas Cromwell, said, "A person consents to how she will be touched, and she is entitled to decide what sexual activity she agrees to engage in for whatever reason she wishes. The fact that some of the consequences of her motives are more serious than others, such as pregnancy, does not in the slightest undermine her right to decide how the sexual activity she chooses to engage in is carried out. It is neither her partner's business not the state's."