The B.C. Court of Appeal has granted a man convicted of sexually assaulting his wife a new trial because messages between the pair about a consensual 香蕉视频直播渞ape role-play香蕉视频直播� scenario were wrongfully excluded as evidence.
The ruling released on Friday says the complainant and accused, who can香蕉视频直播檛 be identified under a publication ban, were married but separated at the time of the alleged sexual assault in November 2019.
The ruling says the husband claimed during the trial that his wife 香蕉视频直播渁greed to participate in香蕉视频直播� and 香蕉视频直播渋nstigated香蕉视频直播� a so-called 香蕉视频直播渞ape role-play香蕉视频直播� scenario, after they exchanged sexually explicit Facebook messages the night before the alleged assault.
The ruling says the woman sent her husband a video message including the sentence 香蕉视频直播溝憬妒悠抵辈Reblog if you香蕉视频直播檙e into Rape Play香蕉视频直播� followed by an exchange that included the wife describing her fantasies.
The trial judge found the messages weren香蕉视频直播檛 relevant because they didn香蕉视频直播檛 contain a 香蕉视频直播渟cript for the role-play.香蕉视频直播�
香蕉视频直播淎 fantasy expressed is different from consent. Consent requires clear parameters and cannot be vague and broad. A fantasy can be entirely in the mind of the holder. Communicated consent cannot,香蕉视频直播� the lower court ruled.
But the three-judge appeal panel disagreed, finding that the messages about 香蕉视频直播渁 stranger rape and feigned sleep香蕉视频直播� were relevant to whether the act was consensual, or whether the accused had an 香蕉视频直播渉onest but mistaken belief香蕉视频直播� there was consent.
The trial judge was wrong to view the messages 香蕉视频直播渋n isolation,香蕉视频直播� the Appeal Court found, because they 香蕉视频直播渨ere prior communications that related to the complainant香蕉视频直播檚 interest in engaging in the very specific type of role-play.香蕉视频直播�
The panel found the trial judge failed to consider the relevance of the messages in connection with a conversation on the day of the alleged assault, in which the husband said his wife described when they 香蕉视频直播渨ould start role-playing.香蕉视频直播�
The ruling says that left the accused to testify as if the conversation 香蕉视频直播渙ccurred out of the blue, rather than as a followup to a discussion that the complainant initiated and participated in.香蕉视频直播�
The woman denied having the conversation in question, testifying that 香蕉视频直播渢here was no talk of any sexual activity that day.香蕉视频直播�
Defence lawyer Elliot Holzman, who represents the accused, said the case involves a somewhat 香蕉视频直播渞are香蕉视频直播� set of facts where 香蕉视频直播渢he traditional notions of consent and honest but mistaken belief in consent have to be adapted to the facts of a rape role-play where one party is pretending to be sleeping or otherwise unconscious.香蕉视频直播�
香蕉视频直播淲hile the facts may seem somewhat salacious, I don香蕉视频直播檛 think that the application of the law is at all controversial,香蕉视频直播� he said.
Holzman said the messages at issue for the trial judge were very 香蕉视频直播渟pecific香蕉视频直播� about the conduct the couple had discussed, rather than generic or 香蕉视频直播渧ague香蕉视频直播� messages of a sexual nature.
He said courts have had to grapple with so-called 香蕉视频直播渞ape role-play香蕉视频直播� and the different 香蕉视频直播渕arkers of consent,香蕉视频直播� which in this case were the excluded text messages discussing the act, in combination with a conversation the day of the alleged sexual assault.
香蕉视频直播淪exual assault law is complicated,香蕉视频直播� he said. 香蕉视频直播淚t香蕉视频直播檚 very important that we get it right and sometimes that does mean that a sexual assault conviction from trial has to be overturned.香蕉视频直播�
He said a hearing is scheduled later this week in Kamloops provincial court.
