WARNING: Some readers may find details in this story disturbing. Discretion is advised.
Former Vancouver Canucks forward Jake Virtanen’s acquittal on a sexual assault charge Tuesday shows the high bar set for women who come forward with criminal complaints, lawyers and advocates say.
A jury of eight men and four women found Virtanen not guilty following a week-long trial that hinged primarily on the different accounts between the athlete and the complainant of a 2017 encounter.
“Unfortunately, what this trial and this verdict does is it confirms what so many victims are afraid of when they come forward,” said Angela Marie MacDougall, executive director of Battered Women’s Support Services in Vancouver.
At the same time, MacDougall said, “It’s amazing how many survivors do actually come forward to share their cases and want to give evidence and seek to have the criminal system be a measure of justice.”
The woman, who cannot be named due to a publication ban, testified during the trial she verbally and physically resisted Virtanen’s advances in a Vancouver hotel room in 2017.
Virtanen, who unexpectedly took the stand Thursday and Friday, told the court the complainant never raised any concerns and was an “enthusiastic participant.”
Very little corroborating evidence was presented by either side, leaving the jury only with two differing versions of the night in question.
Following closing arguments Monday, the judge instructed the jury that any reasonable doubt in Crown’s case against Virtanen would require an acquittal.
Kyla Lee, a Vancouver-based criminal lawyer who was not involved in the case, says that instruction is common in criminal trials and is an especially high bar to clear in sexual assault cases.
“You don’t have to believe what somebody says in order to have reasonable doubt,” she told Global News.
“These cases (sexual assault trials) are often ‘he said, she said’ cases. But really, it’s a case about credibility … and the only time somebody can be convicted is when there’s proof beyond a reasonable doubt.”
Lee said that burden of proof can be difficult for people outside the legal system to fully understand, and can keep alleged victims from coming forward.
“One of the things that we’ve seen through this trial is the very high degree of bravery that you have to have if you are a victim of a crime, to come forward, to testify and to give your version of events about everything that happened to you, because of the difficult cross-examination you’re going to face,” she said.
“It’s unfortunate that our legal system puts victims through this process.”
The defence questioned the complainant during the trial on why she didn’t “invent an excuse” to not engage in sex, such as having a yeast infection or menstruation.
Virtanen also testified that the woman gave consent “through her actions” and never objected to his advances.
“You decided you were going to get sex even if she said no,” Crown counsel asked during cross-examination last week.
“She didn’t say no… never,” Virtanen told the court.
During closing arguments Monday, defence lawyers said Virtanen was a “reasonable witness” whose testimony held up under cross-examination, adding the complainant’s testimony was filled with inconsistencies that were discovered under cross-examination.
They said the woman changed her story around consent. Under direct questioning, she said she resisted Virtanen’s attempts to kiss her but under cross-examination, she said she did consent to the kissing but drew the line at anything further.
Crown countered that just because the woman misremembered or didn’t remember facts from the night in question doesn’t mean the sexual assault didn’t happen.
Lee said mounting a defence focused on questions of consent is typical in sexual assault cases.
“One of the defences available to an accused person is that they honestly believed, but mistakenly, that a person was consenting to sexual activity,” she explained.
That includes showing they took steps to obtain consent to prove they had the honest, but mistaken belief that consent had been granted, Lee added.
The woman filed a civil lawsuit against Virtanen before the criminal charge was laid in May 2021. A trial has yet to be held in the civil case.
MacDougall said alleged victims often turn to the civil system to seek justice because the criminal system often lets them down.
“I think if the criminal system is going to be a measure of justice, and we’re seeing that it’s not, then I think society is going to have to look for other ways to address sexualized violence because it continues unabated,” she said.
Lee said just because Virtanen was acquitted in the criminal trial doesn’t mean he’ll also win the civil case.
“Obviously, a conviction in the criminal case can make it a lot easier for the civil case to work out,” she said.
“But in a civil prosecution, the standard is only on a balance of probabilities: what is more likely in these circumstances? So even if Mr. Virtanen is acquitted on the basis of his testimony, that doesn’t mean he won’t be found liable for civil consequences.”
In a statement following the verdict, Virtanen said he was “relieved” to be found not guilty after the jury considered the evidence presented at trial.
“I am glad the truth has come to light,” he said.
— with files from Aaron McArthur and Amy Judd