ST. JOHN'S, N.L. — A Grand Falls-Windsor judge has convicted a teenage boy of sexually assaulting his girlfriend, saying the boy's own testimony indicated the girl told him that she didn't want to have sex.
Judge Harold Porter found the boy guilty last week, after a four-week trial held in May.
The teenagers' identities are protected by a publication ban.
On Feb. 23, the couple, who are both above the legal age of consent, were watching TV together in the boy's bedroom when they began making out on his bed.
"They stopped kissing and (the boy) asked (the girl) if she 'wanted to,'" Porter said of the girl's evidence, as he delivered his verdict. "(She) understood this question to mean asking her if she wanted to engage in sexual intercourse and she responded by shrugging her shoulders. They continued kissing and (the boy) asked a second time, 'So, want to?' and she again understood this to mean a request to engage in sexual intercourse. She said 'no.’"
The girl told the court her boyfriend asked her if she was sure, and she said, “Yes, I'm sure I don't want to."
The girl testified that her boyfriend got up five minutes later and told her to lie down, saying he was getting a condom. She said she did so because she was afraid he would yell at her or force her if she didn't listen.
"After she lay down, (the boy) did not ask her about having sex and she did not say anything to him. (She) states that she was scared, she froze and that she did not know what to do," Porter said.
The intercourse lasted about four or five minutes, the girl testified, and her boyfriend stopped after he asked her if it hurt and she said yes.
The girl testified she hadn't believed her boyfriend had done anything wrong until she told her friend about the incident, and her friend called it sexual harassment. The girl later spoke with her school guidance counsellor, who spoke with her parents.
The boy testified his girlfriend had shrugged her shoulders and shook her head, indicating she wasn't sure, when he had asked her if she wanted to have sex.
"Three minutes later he asked her again and she was still unsure. He states that this second time he asked, she was 'less tentative,’” Porter said. "(The boy) states that this second time he asked that she was 'still unsure but more for it, I guess' and that there was 'not as much shoulder-shrug and she wasn't as timid-looking.’"
The boy told the court he asked his girlfriend a third time if she wanted to have sex, and she said nothing. When he asked her if he could remove her pants, she hoisted her bum up, he testified.
The boy's lawyer pointed out the girl had raised her hips to help her boyfriend remove her pants, that there had been no history of violence or reason for her to fear him, and that she had not thought he had done anything wrong until she later spoke with a friend. The defence argued the girl could be attempting to protect her own image with her parents.
The Crown pointed out the girl replied to the boy's three requests for sex by first saying no, then shrugging her shoulders, and that her evidence was that she had been afraid in that moment only. The Crown argued the boy had known his girlfriend was not consenting to have sex, and the fact that she said nothing to his last request and did not resist meant nothing.
The judge agreed.
"In approximately six minutes, the couple went from (the girl) having her pants on to (the boy) engaging in sexual intercourse with her," Porter said. "At the beginning of this six minutes she was clearly not in agreement and he continued to ask, saying that she was less tentative. The most telling statement was his last question, 'Are you sure you don't want to have sex?' This question demonstrates that (the boy) understood up to this point that (the girl) was not consenting to sex and yet he moved from asking this question to getting a condom."
Porter said he had found the girl to be credible and that there was no evidence to suggest she was attempting to paint herself in a more positive light with her parents.
Porter accepted that the girl had been afraid of her boyfriend at the time, even though she had testified he had always been respectful to her up to that point, since she had told him she did not want to have sex but he got a condom and had intercourse with her anyway, "without consideration for her communications that she did not want to do this."
Any sexual intercourse without consent is illegal. By Canadian law, a person can consent with words or conduct, but silence or passivity does not mean consent. The responsibility for ensuring there is consent rests with the person initiating the sexual activity.
A child under 16 cannot legally consent to sexual activity with someone who is more than four years older than them, even if they are a willing participant. In certain circumstances, the age of consent rises to 18 years.
Porter said he was satisfied beyond a reasonable doubt that the girl had not consented to sexual intercourse, and the boy was therefore guilty of sexual assault.
He will be sentenced at a later date.
Twitter: @tara_bradbury
