HALIFAX - Nova Scotia man convicted of sexual assault for trying to trick his girlfriend into becoming pregnant by poking holes in her condoms has lost his appeal.
Craig Jaret Hutchinson of Shelburne County was given an 18-month prison sentence in December 2011 after his judge-only trial heard that he pricked his girlfriend's condoms with a pin in 2006 so she would get pregnant and not break up with him.
The Halifax-area woman became pregnant and had an abortion, but she later suffered an infection of her uterus that was treated with antibiotics.
Hutchinson later filed an appeal, arguing that the Nova Scotia Supreme Court's sentence was harsh and excessive and that the woman voluntarily consented to having sex with him.
"Mr. Hutchinson insists that (the woman) freely and voluntarily consented to have sexual intercourse with him and his deception over the condoms, however dastardly, was not enough to vitiate this consent," the provincial Court of Appeal said in its 77-page ruling released Thursday.
But in a 4-1 majority decision, the court said the sentence was not unfit and the trial judge was correct to conclude that the woman did not consent to having unprotected sex.
"It is clear that protected sex was an essential feature of the proposed sexual act and an inseparable component of (the woman's) consent."
One judge dissented, saying the case was not about a lack of consent but rather whether the consent was invalidated by fraud.
Hutchinson was granted bail pending his appeal and is back in custody.
His lawyer, Luke Craggs, said he is considering an appeal with the Supreme Court of Canada.
Hutchinson was previously found not guilty of aggravated sexual assault in 2009 by the provincial Supreme Court. But that decision was overturned by the Appeal Court, which ordered a new trial.