Much of a judge’s decision on a sexual assault trial in Saskatoon will come down to the issue of consent, and whether a woman consented to participating in sex acts filmed by her husband while the couple lived in Saskatchewan.
Closing arguments were heard Friday at Saskatoon Court of Queen’s Bench in the case of a man charged with two counts of uttering death threats, two counts of sexual assault and one count of sexual assault with a weapon, being a cucumber. His name and any details that could identify him are banned from publication in order to protect the identity of his wife.
The man is accused of threatening to kill his wife during arguments over her wanting to go back to Ireland, where the couple had emigrated from in 2012.
Defence lawyer Davin Burlingham argued the alleged victim was actively engaging in or performing the filmed sex acts and therefore must have been aware and consenting. But much of the evidence points to the woman being intoxicated, sometimes to the point of passing out, and even possibly drugged according to Crown prosecutor Buffy Rodgers.
The woman testified that she would drink alcohol with friends and be perfectly fine, but when she drank the same amount of alcohol with her husband she would “black out.”
Rodgers also argued that just because the woman was capable of sex doesn’t mean she was in a state to be able to consent.
Warning: The following is a time line of the allegations as presented in court and contains graphic content.
April 7, 2013
The video showed the woman dressed in dark makeup and performing oral sex on her husband. Burlingham stressed during his arguments the fact that she had testified to “performing” the act. There was no indication of the accused forcing himself into her mouth, he said, and no evidence of how much alcohol she had consumed prior to the video.
The Crown reiterated that the woman had no recollection of the oral sex.
“At no point does she appear to be aware of her surroundings,” Rodgers said.
May 14, 2013
Wearing long, fake pink nails that the woman said she had never seen before, the Crown argued the video showed her husband applying the nails to his wife prior to sex. Rodgers said the accused appeared to be holding her hand and his wife looks passed out.
But Burlingham said the clip provides very little context to what was happening that night and is too vague to prove she was asleep.
July 28, 2013
In separate clips, the husband inserted a cucumber inside of his wife and then she gave him fellatio. Burlingham said the woman is moving in the video, touching her husband’s leg and moaning in pleasure. She even raises herself up on the bed before engaging in oral sex, he pointed out.
On the stand, the accused said a cucumber was sometimes incorporated into the couple’s sex life.
The Crown disagreed. Rodgers said the woman was passed out, unaware of her surroundings and at one point in the video even appeared to greet him as if she was just waking up.
This incident relates to the charge of sexual assault with a weapon. The Crown argued the woman’s emotional reaction to the video constitutes a psychological injury.
March 2, 2014
This video was taken after the alleged victim returned from a trip to Ireland to visit family. Her husband testified she had booked tickets to leave early without involving him because they were having marital problems. She told the court it was because he had started threatening her.
Two of the clips that showed the woman applying lipstick are not a part of the Crown’s case. But in the clip in question, the Crown said the woman was drunk and did not remember the oral sex that was filmed. The accused can be heard instructing his wife to put on more lipstick.
Burlingham said the woman seems aware in the video, supported by her manipulating her husband’s genitals.
May 25, 2014
In this case, the alleged victim reported having vague memories of her husband sexually assaulting her. She testified that she remembers him touching her face, putting his penis into her mouth and then pulling her to the edge of the bed and penetrating her. She said it happened after a couple glasses of champagne to celebrate their new home in rural Saskatchewan.
But Burlingham said the video shows the woman once again applying lipstick before performing oral sex. During an interview, the woman also told an RCMP officer that she couldn’t remember if the video and her flashes of memory were the same incident.
The Crown argued the woman had no recollection of the oral sex from the video, was groggy and drunk and appeared to have weak motor skills. Rodgers said applying lipstick didn’t mean the woman wasn’t extremely intoxicated.
Complainant motivated to escalate allegations: defence
The timeline of events leading up to and during the allegations shows “someone building on a story,” Burlingham told the court.
He said even though the woman went to RCMP on June 27, 2014, she didn’t make a statement until after she discovered her husband had taken her and her kids’ passports. She then went to Saskatoon police on July 1, 2014, explaining that she wanted to take her children back to Ireland because she was afraid her husband would take them to a bunker he was planning to build. She was told her husband had equal rights to the children. At that time she made no complaints about her husband sexually assaulting or threatening her, Burlingham said.
The woman then texted her husband, pleading with him to let them go back to Ireland and inviting him to come along. Burlingham said it was inconsistent with the Crown’s theory that she was leaving out of fear of her husband.
When he refused, the woman went to police on July 4, 2014 and brought up her husband’s connection to a missing person case in Ireland. But Burlingham said she did not mention any of the alleged threats that she could disappear, that he’d “done it before” and that the only way she’d be leaving Canada was “in a box.”
A police officer testified the woman also told him that her husband had video recorded her. But the woman testified she did not know about her husband’s videos until they were played for her during a police interview in October 2014.
Cross-examination of the accused
During cross-examination on Friday, the accused said he had never seen his wife passed out in his life. But when he was interviewed by RCMP, the man said his wife couldn’t handle her alcohol and could get drunk to the point of passing out.
“I must have misunderstood his question,” the accused said in court.
He also admitted that he never got explicit permission to record his wife in the videos shown at trial. He said his understanding was that his wife was “quite happy to be recorded.”
The accused also previously stated that in an intimate relationship, consent is always assumed unless his wife said “no.”
The Crown asked the man why he saved all the sex videos to his hard drive. He said it was because he didn’t trust his wife, and knew that if she ever accused him of anything he would have proof that she was a willing participant.
Justice Martel Popescul will hand down a decision on Oct. 28.