The Red Deer courthouse. (Advocate file photo)

Red Deer judge acquits man of sex assault over consent issue

The issue of consent is at the forefront of a recent acquittal of a man accused of sexual assault.

In his decision, Justice Robert Graesser found the Red Deer man not guilty writing “I do not know that she consented to sexual activity, but I also do not know that she did not consent to sexual activity with (the accused), and that is key to my decision.”

The oral decision came on June 2 in Red Deer Court of Queen’s Bench, but a written decision was released on Tuesday. Graesser noted Crown Prosecutor Brittany Ashmore had requested the written decision. Graesser wrote the decision is based on his best recollection of the oral decision and if there are differences, the oral decision should prevail.

Robert Theus Handy was tried on a charge of sexual assault on April 25 and 26. At trial he testified he believed the woman to be a sex worker and when he asked “do you want to get high and have some fun?” and she said yes, that was consent. However, the woman said she did not consent to sex.

Graesser said it was difficult to find consent in anything the complainant said as agreeing to “have fun” does not constitute agreement to sex, nor does kissing. But, relying on Handy’s testimony, when she took off her pants and laid on his jacket that he believed it was consensual.

On Jan. 1, 2013, the complainant (whose identity is protected) left the apartment building she stayed at to look for drugs at 5 a.m. At the time she said she had consumed alcohol, marijuana and cocaine and was mildly intoxicated. She said at trial a young man approached her and asked if she wanted to go smoke weed, she said yes and went with him to an alley near Looney Lane on Little Gaetz Avenue.

She testified that in the alley, the man pulled out a pipe had a puff and then, instead of letting her smoke marijuana, he said he was going to have sex with her. She tried to fight him off but was forced to the ground, he put his hand on her mouth and threatened her if she screamed. They had anal and vaginal intercourse and he ejaculated on her face.

However, Handy testified that he saw the woman on Little Gaetz Avenue and approached her, believing her to be a sex worker, and said “do you want to get high and have some fun?” to which the woman answered yes. They went into the alley and each took a “hoot” of a marijuana and crack mixture. They then began to kiss, no words were exchanged. He took off his coat and put it on the ground while she took off her pants and lay down on his coat.

They had anal and vaginal intercourse and at no time did she object, say “no” or “stop.” When he said he didn’t have any money, the complainant became angry. He apologized and ran away.

During trial, an RCMP officer testified the location is an area where there is significant drug trafficking and prostitution.

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