Still confused about consent? Judge’s ruling on Coldstream sex assault might help

VERNON – A man has lost his appeal over a sexual assault that happened after a birthday party in Coldstream.

According to a Jan. 6, 2016 judgment by Justice Martha Devlin, a group of people spent the evening drinking and going to a nightclub in Vernon in September 2011 to celebrate a friend’s birthday. Later, several people, including Michael Terry Carter, the complainant and her boyfriend wound up at the same house.

That night, Carter entered a room where the complainant and her boyfriend were sleeping and lay down on the bed beside them. He says the woman eventually started kissing him, took off her clothes and allowed him to have sex with her. She says she went to bed fully clothed beside her boyfriend and awoke to find her pants and underwear removed, and a man having sex with her. When she realized that it was not her boyfriend, she pushed the man off of her.

“The complainant said she did not know who she was engaged in intercourse with; she initially assumed it was her boyfriend. The trial judge found that she could not have known that it was Mr. Carter, given that there was no evidence to suggest that she knew or should have known that he had returned to the home,” Devlin said. “Further, Mr. Carter did not speak at any point during the encounter, and the lighting in the room was insufficient for the complainant to have been able to identify him.”

After the incident, the complainant roused her boyfriend and told him what had happened. Other witnesses testified to her emotional state and said she was crying.

“The trial judge determined that the complainant had not previously shown any interest in Mr. Carter, which should have alerted him that she may have been making a terrible mistake,” Devlin said.

The trial judge rejected Carter’s claim that he had an honest, but mistaken belief the woman consented to having sex with him, calling him ‘willfully blind’ and ‘reckless.’

In his appeal, Carter argued the trial judge erred in his finding, and said the verdict was unreasonable and unsupported by the evidence. Justice Devlin disagreed and dismissed the appeal. She said there was an ‘obvious risk’ the complainant was mistaking Carter for her boyfriend, and that Carter should have take additional steps to ascertain consent.

Carter was sentenced in May 2014 to six months in jail and two years on probation.

To contact a reporter for this story, email Charlotte Helston at chelston@infonews.ca or call 250-309-5230. To contact the editor, email mjones@infonews.ca or call 250-718-2724.