A woman can’t consent to sex unless she knows who she is sleeping with, the Ontario Court of Appeal said Friday in the case of a man convicted of sexually assaulting his identical twin brother’s girlfriend.
In a 3-0 ruling, the court dismissed an appeal by the man, who headed to the darkened bedroom of his brother’s apartment and crawled in beside the woman after a night of partying in September 2006. “In the beginning, the complainant mistakenly thought the sexual activity was with someone with whom she had an ongoing consensual relationship,” said Justice Stephen Goudge, who wrote the appeal court’s decision.
“Such a relationship is a deeply personal one in which the identity of the sexual partner is fundamental,” he said. The woman, then 48, said it was only when she later flicked on a light that she realized to her horror the man she had sex with was not her boyfriend but his brother. Her boyfriend had a facial disfigurement caused by an accident, the court was told.
The events took place in a town in southwestern Ontario. A publication ban has been imposed on the key players’ names. The woman used to live in the town and on regular trips back to visit her children often stayed over in her boyfriend’s apartment. She said she had consumed nearly a bottle of wine on the night in question and when others at the party left the apartment to go to a bar, she stayed behind, heading to her boyfriend’s bed to sleep.
About three hours later, when everyone had returned to the apartment to continue the party, the boyfriend told his twin, who was feeling tired, to go to the bedroom to lie down. The convicted twin argued it was the woman who initiated sexual activity.
Appearing before the appeal court earlier this year, the man’s lawyer, Peter Copeland, argued that even though the woman had been mistaken about his client’s identity, she had agreed to have sex with him, so he is not guilty of any crime.
The man, now 30, noted he is slimmer than his brother and said that part way through the encounter, he asked the complainant if she was “sure” she wanted to continue. That hardly amounted to making his identity perfectly clear to the complainant, said the three-judge appeal panel, agreeing with an assessment by the trial judge.
“It is hardly surprising, from the complainant’s perspective that night, the identity of her sexual partner was an inseparable component of any consent to sexual activity,” Goudge wrote. “Subjectively, she did not voluntarily agree to sexual intercourse with anyone other than (her boyfriend).”
The appeal court concurred with Crown counsel Kim Crosbie’s submission that the man was “reckless and wilfully blind” to the absence of consent.
The man was sentenced to six months in jail.
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