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WHEN THE UNNATURAL BECOMES NATURAL

ETHICS & MEDICS

THE NATIONAL CATHOLIC BIOETHICS CENTER

June 3, 2014

Has our technological age created the impression that technology can be more natural than nature? Is sexual intercourse “unnatural” when it is “unprotected” by technology? Is it possible that consensual sex with the hope of achieving pregnancy can be construed as “sexual assault”?

In 2006, a man from Nova Scotia named Craig Jaret Hutchinson poked holes in his girlfriend’s condoms because he was afraid she was going to break up with him
and hoped that impregnating her would save their relationship.

His girlfriend did become pregnant, but she had an abortion that left her with a uterine infection. She brought the case to court in 2009, and Hutchinson was charged with aggravated assault. Judge Gerald Moir of the Nova Scotia Supreme Court ruled that “although Hutchinson’s actions were fraudulent and ‘dastardly,’ they did not constitute a sexual assault.”

Thus, Hutchinson was found not guilty.  Two years later, the Crown appealed the previous decision and was able to achieve a conviction of sexual assault, which is not as serious a charge as aggravatedassault. They argued that despite the sex being consensual, the woman had not consented to unprotected sex.

Hutchinson was sentenced to eighteen months in jail.

On appeal, the Nova Scotia Court of Appeal ordered a new trial and reached a 4–1 decision to uphold the sexual assault conviction. The basis of their argument was that “condom protection was an ‘essential feature’ of the sexual activity, and therefore the complainant did not consent to the ‘sexual activity in question.’ ”

The single dissenting judge felt that the woman had consented to the “sexual activity in question,” but desired a new trial to determine whether her consent was nullified by Hutchinson’s fraud.

The whole affair finally concluded on March 7, 2014, when the Supreme Court of Canada, by dismissing the appeal, effectively upheld the conviction of sexual assault. In its decision, the Court declared that the complainant “did not consent to how she was touched.” Accordingly, “the complainant agreed to engage in sexual activity in a certain manner, that is, sexual intercourse with an intact condom.  Hutchinson deliberately sabotaged the condom without her knowledge or agreement.                      . . . Because of the deliberate deceit of her partner, the sexual activity was not carried out in the manner that the complainant had agreed to.”

Nature Overcomes Technology

A legal objection can be raised concerning this decision. If a woman covertly discontinues her hormonal contraception and achieves a pregnancy contrary to her partner’s desire, he is legally regarded as the father and is obliged to provide custody payments for the child. But if a man is guilty of a similar contraceptive deception, he is at risk of being charged with sexual assault and thrown into jail. There is a blatant form of sexual asymmetry and possible sexist discrimination here. There is, seemingly, no end to the dire consequences that flow from an unnatural approach to sexual intercourse.  Condoms, of course, are not a hundred percent reliable.
In the Hutchinson case, it cannot be determined with perfect certainty whether the pregnancy was made possible by the pin holes, was the result of a defective condom, or was the consequence of user failure. Nature has a way of asserting itself even when it is oppressed by technology.  One need only consider how various forms of plant life manage to break through the surface of a road that is covered by asphalt.

A natural ordination exists between sexual intercourse and pregnancy. The contraceptive is used to sever this natural ordination. Contraception has attained such a level of popularity that it is accorded a certain moral status.  It is now widely regarded as something that “protects” nature from being itself.  Its use is deemed a “responsible” act. This technological form of “protection,” however, would itself seem to be unnatural. Poking pinholes in a condom actually makes intercourse more natural since it is an attempt to restore the natural continuity between love-making and conception. For the Court to call it “sexual assault” confuses the natural with the unnatural. As decided by the courts, what is truly natural in this case is determined by consent and not by any objective measure.

As a technology, the condom stands between the partners and their nature. The unwanted pregnancy therefore comes to be seen as an “accident” or a “mistake.” In this sense, pregnancy seems to be “unnatural.” Yet nature continues to assert itself, a fact that has been known for thousands of years. Accordingly, Marcus Tullius Cicero declared, “Custom will never conquer nature, for it is always she who remains unconquered.”
Hutchinson can hardly be excused for his act of deception. At the same time, was his partner not deceiving herself in thinking that the condom was a reliable
assurance against pregnancy? Could she really believe that a thin layer of latex is enough to neutralize the bonding potential and biological consequences that are naturally associated with sexual intercourse?

The Times in which We Live
Rev. Paul Mankowski, SJ, has commented on the curious times we live in. “I live at a time,” he writes, “when the best known moral theologians have despaired of leading people to a more virtuous life, but are principally concerned to insulate the sinner from the consequences of his sin; logic has given way to latex as the preferred medium of instruction.”

Father Mankowski may be unduly critically of these theologians, but his basic point is well taken. Since it is difficult these days to teach sexual wholeness, why not baptize the use of the condom as a form of “responsible sex”? In this way, unfortunately, vice becomes virtue, as the naturalness of logic yields to the imperative of pleasure. These are not times when personal integrity is either promoted or exercised. “I live at a time,” Father Mankowski continues, “when most promises will
be broken, most vows will be repudiated, most marriageswill fail.”

The Hutchinson case is a product of today’s moral climate.

by Donald DeMarco

Donald DeMarco, PhD, is a Senior Fellow of Human Life International.  He is professor emeritus at St. Jerome’s University in Waterloo, Ontario; adjunct professor at Holy Apostles College and Seminary in Cromwell, Connecticut; and a regular columnis for St. Austin Review.  Some of his recent writings may be found at Human Life International’s Truth and Charity Forum.