Unplanned parenthood and the meaning of consent

“I don’t want to have a baby with some random girl. I waited my whole life to decide who I have a baby with.”

“...this random girl is fine doing it on her own.”

You may have heard the news already: A doctor in Ontario (“PP”) sued his former sexual partner (“DD”) for the “emotional harm of an unplanned parenthood” after DD became pregnant and decided to have the baby that PP said he didn’t want (his paternity remains unconfirmed). Justice Paul Perell of the Superior Court of Justice sensibly struck out this lawsuit in PP v DD, finding there was no chance of success for PP’s claims of fraudulent misrepresentation and sexual battery.

This is a good result for women’s reproductive autonomy, and one that accords with the holistic understanding of consent in the criminal case of R v Hutchinson – a case that PP relied on but ended up working against him.

Procedural points: Confidentiality and costs

The parties are called “PP” and “DD” after Justice Perell took the unusual step of making a confidentiality order on his own motion, reported in a companion decision. He did this, he said, to protect the child at the centre of the dispute from future “trauma” – even though neither party requested this order or apparently presented evidence on the issue. In both decisions, Justice Perell emphasized the “salacious” nature of the facts.

But based on the decisions, the only “salacious” part was that PP had the gall to sue DD for a logical biological consequence of their sexual relationship. DD’s conduct should not be painted with the same “salacious” brush (even though she may have appreciated not having her and her child’s real names splashed all over the internet).

At the end of his reasons in the main decision, Justice Perell permitted the parties to make costs submissions. However, he said his “present view” was that “there should be no order as to costs.” Surely fairness to DD, who had to respond to this frivolous lawsuit questioning her reproductive autonomy, would require that she get her costs?

The substance of consent

The fraudulent misrepresentation claim was primarily struck because, according to the pleadings, PP hadn’t suffered any real damages; the emotional harm he purportedly endured was “non-pathological,” meaning it did not rise to “the level of a recognized psychiatric illness such as clinical depression or post-traumatic stress disorder.” Justice Perell found this was not the kind of “economic or pecuniary loss” that fraudulent misrepresentation is meant to compensate, and expanding the tort to the “unplanned parenthood” context would be “unnecessary and undesirable.”

Justice Perell then considered whether PP had pleaded a proper claim for sexual battery. The essential elements of this cause of action in tort are sexual touching without consent, whether or not damage resulted. PP pleaded “that he consented but that his consent was vitiated by fraud” – claiming that DD lied to him about being on birth control pills, thus rendering his consent to intercourse ineffective (at least once a pregnancy resulted).

(NB: Nothing in this discussion should be taken to minimize the very real consequences suffered by victims of sexual assault and battery. It is about the particular context of a heterosexual sexual relationship between a cisgender man and woman where there is possible deception about birth control and a subsequent pregnancy, and the question is whether the harm suffered is the kind that the law should protect against.)

As outlandish as it may seem at first, PP’s argued-for concept of consent actually has some basis in the law. But it needs to be unpacked. The unpacking leads back to R v Hutchinson, where the Supreme Court of Canada affirmed a decision of the Nova Scotia Court of Appeal, albeit on slightly different grounds. (Disclosure: I was a law clerk at the NSCA when the appeal was heard there.)

The accused in Hutchinson was convicted of sexual assault after poking holes in the condoms he used with his girlfriend; as a result of his deception, she had an unintended pregnancy, and then an abortion. Both appeal courts upheld the conviction, but grappled with the proper analytical route to do so.

The essential divide at both levels was whether the “sexual activity in question” (as phrased in section 273.1(1) of the Criminal Code, which defines consent) referred to the mere physical act, or whether it also included “essential features” of that act, like birth control. If it did, then one partner’s dishonesty about birth control could make the other partner’s consent void ab initio (as per the NSCA majority, and the SCC minority).

The alternative would be to define the “sexual activity” as the mechanical act alone, but to then consider whether deception about birth control could constitute fraud vitiating consent under section 265(3)(c) of the Criminal Code (see the dissenting judgment in the NSCA, and the majority reasons of the SCC).

This is the thread that PP picked up on in his civil lawsuit against DD, arguing that “his consent to engage in recreational sexual intercourse was vitiated by DD’s express and implied misrepresentations about whether she used and how competently she used birth control pills.” (Keeping in mind that this was only an allegation assumed to be true for the purposes of the motion – it was not actually proven.)

If this kind of conduct could result in criminal liability for sexual assault, as in Hutchinson, then surely it could ground civil liability for sexual battery in PP v DD? Thankfully, no; the line between the two cases is not that simple to draw. The legal distinction is related to the harm that PP allegedly suffered – “non-pathological emotional harm from unplanned parenthood.”

As Justice Perell recognized: “PP, ... being male, does not face the medical risks of the difference between recreational and procreative sex...”

Herein lies the safeguard for women that is built into the Hutchinson analysis of consent – one that will hopefully continue to influence the civil law, as it did in Perell J’s decision to strike the claim in PP v DD. To put it bluntly, the physical effects and risks of pregnancy for women trump the potential emotional (and, yes, financial) consequences for men. This fundamental difference must inform the decision of whether to impose liability for the consequences of sexual activity, or accept that there is the potential for liability, whether in civil or criminal law.

All four sets of appellate reasons in Hutchinson were alive to this difference. For the SCC majority and NSCA dissent, the physical risks of pregnancy for women could constitute the “deprivation” required to meet the test for fraud vitiating consent, because of the potential for “serious bodily harm” to result from pregnancy. As Chief Justice McLachlin and Justice Cromwell put it for the SCC majority:

[70]      The concept of “harm” does not encompass only bodily harm in the traditional sense of that term; it includes at least the sorts of profound changes in a woman’s body — changes that may be welcomed or changes that a woman may choose not to accept — resulting from pregnancy. Depriving a woman of the choice whether to become pregnant or increasing the risk of pregnancy is equally serious as a “significant risk of serious bodily harm”... 

This dovetails with the other major theme from Hutchinson that safeguards women’s reproductive rights: autonomy. The powerful comments about choice from Judge Derrick (who presided over Mr Hutchinson’s first preliminary inquiry) were reproduced in both NSCA judgments:

... Pregnancy does not have to be inevitable; it can be mediated by choice. And while it may naturally occur, it is not a benign condition, especially where it is unplanned and unwanted.

Biology is not destiny: an unwanted pregnancy intrudes upon a woman's autonomy and leaves her with no option but to assume either the risks associated with it and childbirth or the risks associated with abortion. 

This is the kind of holistic—and feminist—thinking that will hopefully prevent more lawsuits like PP v DD. Upholding the criminal conviction in Hutchinson validated the autonomy of a woman who had to deal with an unwanted pregnancy that resulted from her partner’s deception. Throwing out the civil suit in PP v DD signals protection for the autonomy of a woman who chose to carry and raise a child she wanted to have.