Have you tried marine biology?

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?

If a complainant had thought she was being propositioned by a marine biologist (this is my example, not the Court’s), and if she wouldn’t have had sex with the real George, would she be consenting to the ensuing sexual activity? And if so, would her consent be vitiated by fraud?

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