Any video of a BDSM sexual encounter, especially with no audio, could be misinterpreted as sexual assault without the proper context, argued defence lawyers for two men accused of sexually assaulting a 24-year-old woman at the College Street Bar in closing addresses Thursday.

“What consensual BDSM activity would look okay on video without that context? I suggest to you virtually none of it,” defence lawyer Sean Robichaud told the jury. “If one is to say ‘I want a particular type of rough sexual activity. I want to be docile. I want to be submissive,’ if one were to look at a video of that you’d immediately think it was non-consensual.”

(BDSM is an acronym covering a range of sexual practices such as bondage and discipline, dominance and submission, and sadism and masochism.)

The 10 hours of security video of the bar’s main floor, office and storeroom from the night of Dec. 14, 2016, have been a central and contested part of the trial.

The Crown has argued the videos show a woman who becomes increasingly intoxicated, and, at some points before and during the initial sexual activity with the two men, goes in and out of consciousness.

The two defendants have testified the videos show hours of rough but consensual sexual acts where the complainant is sexually dominated at her request and direction.

At issue is both whether the complainant, who testified she has a hazy memory of what happened that night, but recalls being simultaneously raped and forced to perform oral sex, consented to the sexual activity and whether she had the capacity to consent to it.

Gavin MacMillan, 44, and Enzo DeJesus Carrasco, 34, have both pled not guilty to charges of gang sexual assault, forcible confinement and drugging with intent to facilitate a sexual assault. DeJesus Carrasco pled not guilty to two additional charges of sexual assault.

On Thursday, the defence lawyers argued the complainant was flirting with DeJesus Carrasco at the start of the night and had a few drinks while her friend was in a bartending class.

DeJesus Carrasco’s lawyer Uma Kancharla said the complainant had the ability to leave any time she wanted, including after the first alleged sexual assault when DeJesus Carrasco inserted his hand into her pants while they were alone at the bar around 10:30 p.m. They left together about 15 minutes later.

When she returned to the bar at around 11:30 p.m. with DeJesus Carrasco, the security video shows her staggering unsteadily over to a chair and sitting in it, slumped forward, for about 10 minutes.

Both defence lawyers argued this was a temporary state caused by some unidentified pills De Jesus Carrasco said she told him she took, and that she appeared to quickly recover while assuring the accused that she was fine.

The sexual activity at the bar began at around 12:10 a.m. after the complainant had ingested some cocaine, and continued until almost 6 a.m.

“There is no question (as the accused testified) that she’d had some drinks and that had an effect on her. But it did not reach the point where it nullified her ability to consent or know what was going on,” MacMillan’s lawyer Robichaud argued.

Kancharla said the text messages sent from the complainant to a friend the next day, including one where she said she didn’t know what to tell her boyfriend, show “a woman who had a consensual BDSM encounter with two men and she regrets it. We don’t know why, but she regrets it.”

Both lawyers suggested the complainant lied about the sexual assaults to prevent her boyfriend from learning she cheated on him, and because she was embarrassed and didn’t want to admit to her friends what she’d done.

Robichaud argued the complainant’s memory loss appears conveniently selective, especially about interactions earlier in the night when she hadn’t had much to drink.

“Everything to do with Mr. MacMillan and Mr. DeJesus, particularly the parts that don’t look that great on her, she has no recollection,” Robichaud said. “She used ‘I don’t remember’ as a shield to avoid uncomfortable questions or things she didn’t want to answer.”

Robichaud urged the jury to reject the “incredibly dangerous” evidence of a doctor called as a Crown expert witness , because her advocacy for sexual assault victims made her unable to make an objective, neutral assessment of the video. The doctor, who runs a sexual assault clinic at the Ottawa Hospital, testified that, from the video, the complainant appeared to be “dead weight” at one point during the sexual activity and that the rippling of her muscles indicated unconsciousness, or near unconsciousness.

Robichaud argued the sexual assault nurse who examined the complainant the day after the sexual activity said she could not tell if the injuries and bruising were caused by consensual or non-consensual sexual activity. The complainant testified that she has lasting damage to her knees and jaw from that night.

Kancharla argued there were several times when the complainant could have left the bar, including after the first time DeJesus Carrasco inserted his hand into her pants. After that interaction, Kancharla said, the complainant went behind the bar with DeJesus Carrasco where he showed her how to shake a cocktail shaker.

She said that if DeJesus Carrasco had wanted to drug the complainant and sexually assault her that night, he could have done so while she was slumped in the chair and that he would not have encouraged a witness, the cocaine dealer, to come to the bar.

She argued DeJesus Carrasco was a “gentleman” in the way he treated the complainant over the course of the night, including obtaining the cocaine she asked for and taking her home with him in the morning because she was worried her friend’s apartment would be locked. The Crown has challenged DeJesus Carrasco’s claim that he was always respectful of the complainant, pointing to a text message he sent to MacMillan that night in which he said: “this b—h is out of control.”

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DeJesus Carrasco said his text messages, including the ones where he said he had a “girl pass out” and that she was “dead dead dead,” should not be taken literally.

Kancharla also argued there were two people in the living area of DeJesus Carrasco’s small basement apartment that morning when he arrived with the complainant and that it would have almost impossible to rape the complainant with those witnesses so near by.

The Crown is set to make closing arguments Friday.