A recent sentencing in a sexual assault case in Kingston’s Superior Court of Justice illustrated just how legally perilous sex has become.

A 23-year-old Kingston man, having been found guilty late last year of committing a sexual assault when he was 19, and during what at least began as consensual sex by the complainant’s account, was sentenced by Superior Court Justice Paul B. Kane to four months in jail, followed by three years of probation and a 20-year listing on the Sex Offender Information Registry.

But the judge, in his reasons for sentencing, said that had the man elected to be tried by a judge sitting without a jury, he would have acquitted him on the evidence he heard.

Justice Kane was critical of the local Crown attorney’s office for opting to proceed on the complaint of four specific acts of alleged "misconduct" as comprising one sexual assault simply because they all occurred within a single sexual encounter.

He consequently had to instruct the jury that if they found the man had committed all or any of the acts without the complainant’s consent, they should find him guilty of sexual assault and that they need not be unanimous in their agreement about which act or acts constituted the offence.

The judge observed that the components of the conduct complained of — touching the woman’s anus with his finger, touching it with his penis, anal penetration and resumption of vaginal sex — were not equally egregious.

Because jury deliberations are secret, however, he had no way of knowing exactly which of those acts formed the basis of the jury’s verdict. That, according to Justice Kane, exposed the man to the possibility of a penalty suited to "conduct more serious than that determined by the jury."

At the same time, however, he said assuming the finding was based on less serious conduct risked treating the jury finding as being of minimal importance.

In his summary of the case, Justice Kane noted that the man and his accuser had previously been sexually intimate but were not dating in April 2012 when the acts complained of occurred.

The complainant, who was 18 at the time, had gone to a party that Saturday night, he said, and the man arrived later to the same party with friends.

At the end of the night, he offered to drive her home and, Justice Kane recounted, that after first dropping off one of his male friends, the man on trial had asked if she wanted to spend the night with him.

The judge said the woman was amenable and after arriving at his apartment consented to kissing, oral and vaginal sex. He also noted the man gave the young woman a pair of his pyjamas and asked her which side of the bed she wanted, but there was no discussion between them about the use of a condom.

She testified before him that she consented to initial vaginal intercourse, he said, and that she fully participated and enjoyed it.

It was only later, when the young man’s finger touched her anus, that she objected, Justice Kane observed, telling him "that was disgusting."

On the evidence, the man didn’t try to penetrate her anus with his finger and moved it when she objected, according to the judge, who added that it wasn’t clear to him the touching was even intentional. He suggested it could have happened accidentally when he lifted her by the buttocks.

Consequently, Justice Kane said, he would not have convicted him of sexual assault based on that part of the complaint.

Later, the judge recounted, the evidence was that the then 19-year-old man applied lubricant to the complainant’s vagina and anus, as well as his penis, and "she didn’t object to his penis probing her anus for about one minute." Again, "I would not have convicted on count two."

He said it was only after the accused penetrated, started to move and caused her pain that she said "ouch." And while, according to her testimony, the young man didn’t stop until she grabbed his arms and told him to, he did then comply. Justice Kane rejected the man’s claim that he didn’t intentionally initiate anal sex and only accidentally inserted his penis in the wrong orifice. He was satisfied, he said, that the anal sex was intentional. But, he added, "there is also evidence that the penetration of the penis into the rectum was consensual until it caused her pain."

After that, he judge said, the young woman got out of bed and went to the bathroom, intending, according to her own testimony, to return and sleep with the man for the rest of the night, until she noticed some "green goop" on her buttocks.

She said she then changed her plans, according to the judge, because she didn’t know what the goop was or what it meant and it upset her. He said her evidence that she intended to return and sleep with the man "causes doubt in my mind about her claim that she had communicated her objections" at that point.

He also noted that, under questioning by the man’s lawyer, Matt Hodgson, she confirmed receiving three emails from his client the following morning, questioning her departure and asking: "Where did you go?"

It would have been unusual to send such texts, Justice Kane said, if he was aware he’d just sexually assaulted her.

Consequently, the judge said, he would not have convicted the man of sexual assault based on the anal sex or for trying to resume vaginal sex with her upon her return from the bathroom.

During that final act, the judge suggested, the complainant allowed him to resume sexual activity, although the evidence was that she just lay there without moving, prompting Hodgson’s client to ask if she wanted to go to sleep — and his ceasing to have sex with her.

The Crown argued that he should have ascertained that the woman was still consenting after her return from the bathroom. But Justice Kane felt his failure to do so, under the circumstances, still didn’t constitute a sexual assault.

"The accused and the complainant both have the capacity to communicate their wishes and say ‘no’," he observed.

He said he would not have convicted on the resumption of vaginal intercourse, but "I’m obliged to follow the unspecified and ambiguous verdict of the jury," he complained, adding that "this is entirely the fault of the Crown."

The Crown had urged a three-year prison sentence for the man. But Justice Kane found his case had none of the aggravating features that would warrant a sentence of that length.

And while he acknowledged that people have different reactions to events, the judge said the complainant’s claims about the impact that night’s events have had on her "exceeded my expectations."

sue.yanagisawa@sunmedia.ca