The second trial for a man accused of raping a “grossly intoxicated” teen girl in his Whitehorse home two years ago concluded last week, with the judge choosing to reserve his decision.
Jackie James Kodwat is, again, facing a judge-only trial for a charge of sexual assault related to an incident in December 2015, during which he allegedly had nonconsensual sex with the teen after letting her into his home in the McIntyre neighbourhood.
Kodwat’s first trial in 2016 resulted in a conviction. However, he appealed, saying trial judge Donald Luther’s decision was “founded upon the stereotypical reasoning and speculation regarding the way in which men and women interact to which he referred in his submissions.”
In his decision, Luther said, among other things, that it was “inconceivable” that an “attractive” teen girl would “consent to kiss for 20 to 25 minutes and then have unprotected sexual intercourse with the accused who meant nothing to her and whom she did not remember — and furthermore, who was 28 years her senior.”
The Yukon Court of Appeal granted Kodwat a new trial in July, with Justice Peter Willcock writing that Luther’s claim that the situation was “inconceivable” was a “stereotypical assumption or generalization lacking in an evidentiary foundation.”
“In my view, there is a danger that assumption resulted in a conviction that was not founded upon the evidence,” Willcock said.
Kodwat’s new trial began the afternoon of Oct. 31, with Crown prosecutor Noel Sinclair and Kodwat’s lawyer, Vincent Larochelle, presenting their closing submissions before Judge Raymond Wyant Nov. 2 and 3.
“This is, regrettably, the story of another teenage girl… which is, go to parties, drink way too much and then find themselves in situations which are out of their control, and they are victimized sexually,” Sinclair said, noting that the case turns on the girl’s ability to consent or capacity to consent.
The complainant, whose name is protected under a publication ban, came to Whitehorse to “socialize” with a friend in late December 2015, Sinclair said, and went to a party at Yukon College and then a house party where she “drank to excess” and smoked marijuana.
She ended up wandering around the McIntyre neighbourhood in a “grossly intoxicated stupor” seeking shelter, Sinclair said, eventually finding herself in Kodwat’s house, a stranger, and falling asleep in a chair in his bedroom.
When she woke up, Sinclair said, she found herself in Kodwat’s bed, his arms wrapped around her and her panties and pants off. She has no memory of the alleged assault.
At one point, Wyant repeatedly asked Sinclair to clarify whether the girl did not consent or doesn’t remember consenting.
“If I were to ask you about your memories last night after you fell asleep, what would you say?” Sinclair responded.
Throughout his submission, Sinclair emphasized that the teen was “grossly, profoundly, intoxicated” and not only did not consent to any sexual activity but did not have the capacity to.
“There’s clear evidence that the girl was blotto,” Sinclair said. “Unconscious people cannot consent to sexual activity.”
Larochelle, however, argued that the Crown’s case was “entirely circumstantial” and failed to prove beyond reasonable doubt that a sexual assault occurred.
Sinclair’s statements about the complainant’s level of impairment are “highly speculative,” Larochelle said, noting that all that’s known for sure is her blood alcohol concentration (BAC) at the time she had a blood sample taken at the hospital, hours after the alleged assault would have occurred.
“Everything else is inferred,” Larochelle said, noting that during the trial, a toxicologist testified that it would be impossible to say, exactly, what the complainant’s BAC or how impaired she would be at any given point prior to the blood sample being taken. Larochelle accused the Crown of looking at the toxicology report and only “seeing what he wants.”
“The only certainty is that there is no certainty about this,” Larochelle said.
He also pointed out that the complainant had been inconsistent and uncertain about how much she actually drank that night and the timing of events, including when she arrived at the college, how long she stayed and how long she’d been walking around McIntyre before meeting Kodwat.
She also testified she would never consent to having sex with an older man, Larocehlle said, but then acknowledged that the father of her child was 34.
The only thing known for certain from the evidence is that the complainant went to Whitehorse, went to the college, went to a house party and went to Kodwat’s, where “contact of a sexual nature” occurred, Larochelle said.
Wyant is expected to give an update in court Nov. 9 on when he will be releasing his written decision.
With files from Andrew Seal
Contact Jackie Hong at jackie.hong@yukon-news.com