CANADA – A man convicted of sexually assaulting his unconscious girlfriend, who had consented to being choked in the first place, pleaded ignorance of the law at his sentencing hearing yesterday. The offender, who can only be identified as J.A. due to a publication ban, was found guilty in April for anally penetrating his girlfriend with a dildo after he choked her into unconsciousness.
Although the pair regularly experimented with rough sex, including asphyxiation, over their eight-year relationship, Justice Dianne Nicholas decided the woman could not have consented to anything while unconscious.
“I had no idea that anything we were doing in our sexual relationship was illegal,” J.A. said yesterday as he fought back tears in front of Judge Nicholas.
He added that he researched the dangers of experimental sex and never wanted to cause his former girlfriend and mother of his child any pain.
“I love her, I always have,” J.A. said.
His lawyer, Lorne Goldstein, asked for his client to be spared any further jail time and for his sentence to be served in the community, after giving him credit for 77 days already spent in custody.
Though the Crown is recommending a sentence of 15 to 18 months in jail, Mr. Goldstein said, “He’s now a registered sex offender. To punish him further serves no purpose. … It does nothing for him, it does nothing for (the victim), it does nothing for society at large. It does nothing.”
He asked the court to consider that the victim only went to police to make a complaint two months after the incident, when the relationship was faltering. And he noted that the victim, who later recanted her complaint, had consensual sex with J.A. after she regained consciousness.
“And that is the effect it had on her, which is to say, none. They just switched to the more conventional mode,” Mr. Goldstein said.
Judge Nicholas agreed that J.A. never acted against the specific wishes of his then-girlfriend.
“There’s no ‘no’ in this case,” Judge Nicholas conceded. “But there’s no ‘yes’.”
Recent legal changes have placed a greater burden on sex partners to ensure consent, Judge Nicholas noted. Mr. Goldstein argued that while ignorance of the law is not an excuse, it needs to factor in to J.A.’s sentence.
“He should not go to jail because he did not wait for her to wake up when he should have.”
J.A.’s sentencing is to resume Sept. 8.
Courtesy Canada.com: Canada
Tags: Crimes, Kinks & Fetishes, Sex Toys