Why Heidi Montag Should Not Be Sent to Jail

By Jill Gamez (2L)

I respect Greg. I fear Greg, at least during the month of “Movember”. I would never sabotage his parachute with back-copies of Canons, although it is a fantastic publication and I can think of no better way to go. However, I cannot agree with Greg. While lying or tampering with birth control is a dishonest act, and could lead to deprivation of the deceived party, it should not vitiate consent to sexual intercourse and lead to a criminal charge of sexual assault.

Section 265 of the Criminal Code states that fraud vitiates consent but does not define the term “fraud”. Cory J., for the majority of the SCC, held in Cuerrier that fraud would vitiate consent only when a dishonest act which induced the complainant to consent to sexual intercourse led to the risk of, or actual, bodily harm. The framework was firmly endorsed in 2003 by the SCC in R. v. Williams.

Section 265 of the Code governs all compounds of assault. Therefore, the test articulated by Cory J. in determining whether fraud vitiates consent would likely apply to a charge of sexual assault against a woman accused of tampering with or misrepresenting her birth control. While this misrepresentation is a dishonest act, it is unlikely, and undesirable, that a court would extrapolate the definition of “bodily harm” to include an unwanted pregnancy and its adverse effects on a surprised father. There is an obvious policy concern of defining an “unwanted” child as a bodily harm perpetrated on the father. This extension has similar pejorative connotations to the term “illegitimate”, as it distinguishes between children born unexpectedly as a result of misrepresentation about birth control (harmful), and those who are not (not harmful). The harm in this case would HAVE to be the child-what court, if the woman did not get pregnant, would charge her as a result of the psychological damage suffered by the father because of the heightened anxiety he felt as a result that she might get pregnant? What would be the basis for the complainant’s charge? Oh, I feel violated because I had sex and she wasn’t on the pill and she didn’t get pregnant? What he was consenting to, under the pretence, was a reduced chance of pregnancy. If there is no pregnancy, could he still charge her with the increased risk of a pregnancy? Could that risk constitute a bodily harm? There would be huge implications, as pregnancy is implicit in all heterosexual sexual intercourse.

I have to agree with both McLachlin J. (as she then was) in her dissent and Cory J. in Cuerrier. It is impractical to apply criminal charges to every instance of fraud in the sexual context, as it could place criminal consequences on acts that do not warrant them. A person should only be charged with assault when the complainant, who was induced into sexual intercourse, suffered a deprivation and risk of, or actual, serious bodily harm. An unexpected pregnancy should not be described as such harm.