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Was woman duped into sex with lover's twin?Defendant requests new trial in bizarre sexual assault caseJesse McLean Staff Reporter
Everything changed when the lights came on.
The woman, who had earlier consumed several glasses of wine, was sleeping in her lover’s darkened bedroom when a man joined her.
The two had sex, but something felt off to her. His body didn’t feel right. She flicked on the bedroom light and realized the man wasn’t her lover but his identical twin.
“Oh my God. Oh my God. Oh my God,” she said, grabbing her clothes.
“I thought you were your brother,” the man remembered her saying before she ran out of the apartment.
The man, who was convicted of sexual assault and sentenced to six months in jail for the September 2006 incident, is now requesting a new trial before the Ontario Court of Appeal at Osgoode Hall in Toronto. The man and woman’s name, as well as various details, can’t be reported under a publication ban.
The unusual case hinges on consent: Did the woman agree to have sex or was she duped into intercourse?
The woman was visiting the brother of the accused at his apartment in a small town in southwestern Ontario. The two were friends, and whenever she visited the area, she stayed at his flat and they had sex.
On the September evening, the brother was having a party. After some mingling, the woman and the accused drove to a liquor store where they each bought a bottle of red wine.
At the apartment, they became intoxicated and the woman became flirty, the man testified at his 2008 trial. She sat on his lap and, at one point, pecked him on cheek, he said.
The woman testified that she felt uncomfortable around the twin.
Around 11 p.m., the woman felt tired and drifted to the brother’s bedroom as the party moved to a local bar.
When they returned home 3 1/2 hours later, the accused felt sleepy. He lay down on the couch, but the other partiers kept him awake. His brother recommended he sleep in the bedroom.
He saw the woman sleeping in bed, wearing just a t-shirt and underwear. He didn’t think it would be awkward if they shared the bed, he told the court in 2008. “I thought we were all pretty good friends,” he testified.
After five minutes, he said the woman started running her hand down his shoulder and neck. Soon, the touching turned heavy and he was taking off his pants.
However, the woman, who was 48 at time of the trial, said she awoke to who she thought was her lover cuddling.
As the petting progressed, the accused, now 30, said “something clicked” and he decided to make sure she knew who he was. He moved his face into a shaft of light that came from under the bedroom door, and looked the woman in the face, he said. His brother was more muscular, and he had had an accident recently and his face was noticeably disfigured.
“She had an opportunity to view him and he asked, ‘Are you sure?’” said the appellant’s lawyer, Peter Copeland. “She, by her conduct not by her words, consented.”
Copeland told the three-judge appeal panel that the man had honestly believed the woman knew who he was and he did not deceive her into having sex.
However, Crown attorney Kim Crosbie said the woman had all reasons to think it was her occasional lover in bed. It was his apartment, and they had slept together in that room many times.
The woman testified that she repeatedly called him by his brother’s name before they had sex.
“His question to the complainant — ‘Are you sure?’ — was simply not enough,” Crosbie said. “Nothing short of an acknowledgement of who he was would be sufficient.”
The judges will announce their decision at a later date.
