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Jim Lutz Gets Huge Win For Client In Sexual Assault Case

Our firm recently represented a young person charged with sexual assault in the case of R v MGM. This matter involved our client and two other individuals, involving a “threesome.” The complainant testified that she drank some alcohol prior to meeting up with my client and his friend. The complainant testified at trial that she was told to give my client oral sex. While this occurred, his friend engaged in vaginal sex with her. She said that there was no discussion of sexual activity prior and no agreement to this sexual activity prior to it occurring.

She further testified that my client engaged in vaginal sex with her. Both individuals ejaculated inside of her, and neither were wearing condoms. The complainant agreed that she wanted to have sex with my client’s friend. He was not charged as a result of this incident. However, she claimed that she did not consent and did not want to have sex with my client. She never said “no” or “stop” but she testified that she was “scared” and “didn’t know what to do.”

My client denied her allegations and testified that he and his friend picked her up that night. While they were driving, they explicitly discussed having group sex. While this threesome was occurring, she was making sounds of pleasure and acting as though she was enjoying it. My client testified that no force was used contrary to her testimony. My client’s friend also testified. His evidence was contrary to the complainant’s testimony.

When an individual testifies in court, the Judge is receiving viva voce (or live evidence) from the witness. After all witnesses have testified, the Court will have to conduct a credibility and reliability analysis. Often times, we hear the term “he said/she said” however this is not how the Court is to analyze the evidence. When two or more witnesses give evidence that is “diametrically opposed” to each other, the credibility analysis cannot be uneven in that it can’t be that the complainant’s evidence is analyzed in a less rigorous manner. That would be unfair to an accused person and contrary to the credibility test.

The issue of consent is assessed subjectively determined as to the complainant’s state of mind at the time the sexual touching occurred. The Court must assess the complainant’s credibility about her state of mind at the time and account for any ambiguous conduct. The next step the Court must take is to consider the accused’s evidence. In my case, my trial judge rejected some of my client’s evidence. However, she found she couldn’t reject my client’s evidence about the complainant being a willing and consensual participant in the sexual activity. The trial judge also noted that my client’s friend’s evidence also corroborated his evidence. Ultimately, the trial judge found he couldn’t accept and rely on the complainant’s evidence for a variety of reasons and acquitted my client.

This case is illustrates the necessary skill and ability a criminal defence lawyer must have in carefully and strategically building a defence. The prosecutor in this case didn’t want to call the witness who could testify about the alcoholic drinks the complainant had prior to meeting with my client and his friend. We insisted the prosecutor make this witness available at trial for questioning. Preparing for trial and taking the stand to give evidence is not easy. Your criminal defence lawyer should be prepared to meet you and prepare with you so that you are confident and as comfortable as possible when on the stand. Your defence lawyer should prepare you for examination-in-chief and for cross-examination. Your lawyer should explain the rules of evidence and prepare you on what to expect and how to respond. I did that for my client. He was found not guilty of sexual assault.

We are serious Calgary based criminal defence lawyers who handle serious criminal allegations like in the case of R v MGM. If you need help, contact us today.