Trial on charges of sexual assault and assault causing bodily harm. Domestic relationship. Allegation that in course of a physical altercation, accused grabbed the complainant’s vagina and squeezed it forcefully. Issue of whether the facts established a sexual assault in the absence of accused having sexual intentions.
Held: Conviction entered.
In course of the argument, complainant threw a beer can at the accused which “constituted an implicit consent by her to engage in physical conflict”. Question of whether defence of consent was available turned on whether the grabbing of the vagina constituted common assault or sexual assault. “I am satisfied that while LL’s motivation for this behaviour was not sexual gratification, it was intended to be sexually degrading and controlling and it constituted a violation of TW’s sexual integrity …while a consensual fight may arguably…include force applied to the genitals of the participants, one cannot consent to a sexual assault, and when a common assault becomes sexual, any existing consent to fight is irrelevant to that sexual assault.”
D. Gelineau – Defence Counsel