An Alberta Queen’s Bench Justice has overturned a teen’s sexual assault acquittal, stating the trial judge resorted to stereotypical reasoning.
In her July 21 ruling, Justice J.E. Topolniski said Judge Michael Savaryn incorrectly applied the law of consent in his April 22, 2016 ruling.
The decision goes on to say the details in the case are straightforward and much of what happened that day was captured on camera and viewed by the trial judge.
Scroll down to read the judge’s decision.
The written judgement outlined how a 15-year-old girl was approached by a 15-year-old boy inside a school. She laughed off a disrespectful comment about her body, but on her way out of school, the boy told her she was sexy and fit and slapped her buttocks several times. The girl again laughed it off, and the video shows her smiling and giggling.
The boy then pushed the girl into a locker and again grabbed her buttocks and tried to kiss her. The female student attempted to get away but the male followed her and pushed her into a closed doorway. He again grabbed her buttocks and breasts and tried to kiss her. The girl tried to push him away and fend him off with her water bottle.
Court documents explain the male told her she should “just let him do it.” She said “No.” By that time the female student wasn’t laughing and when she left the school, he asked her for a hug. She again said no and walked away, but he grabbed her and hugged her anyway.
Justice J.E. Topolniski said the trial judge rejected almost all of the young girl’s evidence and found her actions to be inconsistent with non-consensual sexual touching.
In his original decision, Judge Savaryn said the female tried to laugh it off, and that he did not believe the female successfully communicated her discomfort.
“Consent means “Yes.” The word “No” does not mean “Yes,” Justice Topolniski wrote.
“The word ‘No’ coupled with fending off an attacker with a water bottle does not mean ‘Yes.'”
Topolniski said the complainant’s state of mind after the incident is irrelevant to the question of consent.
“The requirement that a complainant raise the hue and cry has long since passed into the mists of time.”
The case will return to youth court. The boy’s next court appearance is scheduled for August 25.
With files from The Canadian Press
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