A 15-year-old Abbotsford boy who said he assumed his 14-year-old girlfriend had consented to sex when she nodded and made eye contact with him has been found guilty of sexual assault.
Judge Kenneth Skilnick ruled in Abbotsford provincial court last week that the boy was “reckless or willfully blind as to whether or not he had the consent of the complainant” and could not have held an “honest belief” that the girl was consenting to the act.
The court heard during the boy’s trial that the teens met in 2013, but because they were living in different cities and did not drive, most of their contact was through social media, cellphone texts and over their video game headsets.
The two considered themselves a couple in late 2014, when they began talking about meeting in Abbotsford.
Their messages turned to the subject of what sexual activity should be allowed when they finally met in person, according to Skilnick’s written ruling.
Skilnick said the messages, which were produced as evidence during the trial, indicated that the girl was seeking an “emotional attachment,” while the boy’s main goal was sexual in nature.
“The complainant testified that the accused was the first boy who had shown any attention to her. The complainant appears to have felt that she had to bargain away her sexual integrity in return for the accused’s attention,” Skilnick said.
The communication exchanged between the two involved negotiations about their sexual activity, with the girl agreeing to some touching, but saying she wanted to wait until she was older to have sex.
The two met in person in January 2015 – when they were ages 14 and 15 – at Sevenoaks Shopping Centre before walking to the boy’s home.
The girl testified that during their walk, they discussed what would happen at his home. She said she again gave her permission for him to touch her, but emphasized that “intercourse was out of the question.”
Soon after they got to the boy’s bedroom, the two cuddled briefly before the he began touching her. The girl testified that she did not enjoy what was taking place but she cared for him and had agreed to the terms.
The girl said that, after a break while the boy played a video game, he removed his pants and her pants, and had sex with her “very roughly.”
“She testified that she tried to tell him that he was hurting her, but that she had difficulty getting the words out,” Skilnick said.
The boy testified that he had asked the girl, “Would you be OK with going all the way?” but didn’t get a response the first time.
“So I made sure I got her attention the second time, made sure there was eye contact and everything. And I had asked again. What I saw was a slow, but firm, nod … I took enough time to, like, give her the chance to tell me to stop or to push me off or do really anything to stop it from happening. But she didn’t, so we proceeded with it,” the boy testified.
He said he believed the girl had changed her mind about having sex because she seemed to become comfortable with the other sexual activity as it progressed.
The girl returned home later that day and texted the boy, saying “the whole sex thing turned my world upside down.”
He replied with a message, telling her “next time don’t be so pathetic” and later told her he was done with her and was dating someone else.
Two days later, the girl began crying to a friend and told her what happened. The friend convinced her to speak with a school counsellor, who obtained the girl’s permission to inform the principal. Her mother was called, and the girl then saw a sexual assault nurse examiner and provided a statement to the Abbotsford Police Department.
Skilnick said in his ruling that, because the girl had stated several times prior to their meeting that she did not want to have sex, the boy “should have made certain” that she had changed her mind.
“The accused cannot rely on the brief lapse of time, the complainant’s silence or his subjective interpretation of what he perceived to be a silent nod that he can’t describe, to justify what he did as being moral, justifiable, lawful or consensual,” he said.
Sentencing will occur at a later date.
The identity of the boy is protected under provisions of the Youth Criminal Justice Act.