From the Courts - Poking Holes in the Defence

This report is from the Chronicle Herald:

New trial ordered in case of condom tampering

By DAVENE JEFFREY Staff Reporter
Fri. Jan 22 - 4:46 AM
A Dartmouth man who admitted to poking holes in his girlfriend’s condoms will be tried again for aggravated assault.

A year ago, Craig Jaret Hutchinson was found not guilty of aggravated assault or of the lesser charge of sexual assault. The Crown appealed that ruling, and in a written decision released Thursday, the Nova Scotia Court of Appeal has given the Crown another chance to test its case against Mr. Hutchinson in a new trial.

The Crown has alleged that Mr. Hutchinson endangered the life of his then-girlfriend by putting holes in the condoms they used during sex, which resulted in her pregnancy and an abortion. The woman subsequently suffered an infection in the lining of her uterus, which was treated with antibiotics.

During the trial, the court heard that Mr. Hutchinson had hoped a pregnancy would save their relationship. But the couple broke up and Mr. Hutchinson eventually told his ex-girlfriend during a telephone conversation and in three text messages that he had sabotaged the condoms.

Justice Gerald Moir, who heard the case last year in Nova Scotia Supreme Court in Halifax, ruled that although Mr. Hutchinson’s actions were fraudulent, they didn’t constitute sexual assault. He acknowledged that the woman suffered complications from the abortion but said they could not be considered serious.

But two judges on the three-member Appeal Court panel, Justice Nancy Bateman and Justice Elizabeth Roscoe, found that the woman had not consented to unprotected sex.

"The sabotaging of the condoms fundamentally altered the nature of the sexual activity in question," the decision reads. "Her consent could therefore be found not to be reasonably informed and freely exercised."

But Justice Duncan Beveridge concluded that "there is nothing in the language or history of this legislative provision that permits such an interpretation."

Justices Bateman and Roscoe also found that any consent by the woman to sex was negated by the fraud.

"Furthermore, there was some evidence upon which a finding of endangerment or bodily harm could be based," the decision reads.

Besides experiencing morning sickness, followed by bleeding, severe pain and an infection resulting from the abortion, the victim also endured emotional and psychological distress, the judges concluded.

Photo from previous coverage by MetroNews: