WARNING: This story includes graphic content. Discretion is advised.
The lawyer for a man being retried after a judge’s controversial remarks in a sexual assault case has suggested his client’s penis size may have played a role in whether the woman consented to sex.
READ MORE: Alberta Justice Robin Camp in ‘knees together’ case admits ‘non-existent’ knowledge of criminal law
Alexander Scott Wagar’s lawyer Pat Flynn asked the woman during cross-examination Tuesday if she was attracted to his client after he flashed her and she saw that he was “larger than most men.”
“No,” she responded vehement.
Flynn suggested the sex was consensual because the two had been engaging in “aggressive foreplay.”
“No,” she replied again.
READ MORE: Alberta judge’s ‘knees together’ controversy: list of Canadian Judicial Council inquiries
The complainant told court she had danced with Wagar after he flashed her and that she had complimented him on his dance moves.
Watch below: Global’s past coverage of the controversy surrounding Alberta Justice Robin Camp
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Removing judge for ‘knees together’ comments ‘easy answer’: lawyer -
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Closing arguments heard in ‘knees together’ hearing -
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Review underway for judge who asked sexual assault victim why she couldn’t ‘keep her knees together’ -
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Hearing begins for Alberta judge who asked sex assault complainant why she couldn’t keep knees together -
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The fallout from Justice Camp’s case -
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How much training do Alberta judges receive?
Court has already heard how Wagar, 29, and the woman, 24, were at a party in a Calgary home in December, 2011.
The woman testified that she was in the bathroom when Wagar came in, locked the door and ripped her clothes off. She said the sexual assault lasted 15 to 20 minutes.
READ MORE: Alberta Justice Robin Camp apologizes at hearing over ‘knees together’ comment
Wagar was acquitted of sexual assault in 2014 by Judge Robin Camp, who decided Wagar’s version of events was more credible.
During the original trial, Camp referred to the complainant as the accused, asked her:
“Why couldn’t you just keep your knees together?” and said “pain and sex sometimes go together.”
The verdict was overturned on appeal and a Canadian Judicial Council panel is currently mulling over whether to recommend Camp be removed from the bench.
READ MORE: Alberta judge in ‘knees together’ case should be removed from bench, says lawyer
Flynn charged that the woman made up the rape allegation because she was upset Wagar had sex with another woman at the home after what happened in the bathroom.
Wagar’s brother, Flynn said, was bugging her about that.
“She then went from consensual sex to then saying it was rape,” Flynn said.
“When his brother starts trash talking you–you’re going to get back at him. You’re going to say he raped you.”
The retrial is being heard by a judge without a jury.
Kim Stanton, with Women’s Legal Education and Action Fund, has been following the case and said this sort of treatment of a sexual assault complainant isn’t a surprise.
“Whether or not the young woman danced with the accused or complimented him on his dance moves has no bearing on whether she consented to the sexual activity in question. The question is whether the accused gained her affirmative consent,” Stanton said.
“This sort of victim-blaming in cross-examination is a big part of why survivors of sexual assault so rarely report to the police and the fact that this young woman is being subjected to this difficult cross-examination yet again shows considerable courage on her part.”
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