Inappropriate conduct is not criminal conduct, the defence argued Tuesday during final submissions at Father Phil Jacobs’s trial for sexual offences against three youths.
Jacobs, 63, who was parish priest at St. Joseph the Worker in Saanich from 1997 to 2002, is charged with sexual assault and sexual touching of a young person under the age of 14. He is also charged with sexually touching a second youth under the age of 14 and, while in a position of trust, sexually touching a third youth under the age of 14.
The offences are alleged to have occurred between September 1996 and June 30, 2001.
Jacobs’s defence lawyer, Chris Considine, urged B.C. Supreme Court Justice Miriam Gropper to look at the Crown’s evidence with a great deal of care and not to be swayed by prior allegations of sexual misconduct by Jacobs in the U.S.
The first complainant testified that Jacobs abused him for about two years beginning in Grade 5. Jacobs separated him from other boys and, once they were alone, put his hands down the boy’s pants, the complainant testified. On at least five occasions, the priest forced the boy to touch Jacobs’s penis, he said.
At trial, Jacobs emphatically denied that he ever touched the student in a sexual way, Considine said. He described the youth’s testimony as beyond belief, and said it raised doubts and was rebutted by other witnesses.
The second complainant testified that Jacobs threw him on the bed and tickled him when the youth was dressed only in underwear.
There was no touching that might be described as sexual, Considine said, and nothing in the tickling that violated the boy’s sexual integrity or gave sexual gratification to Jacobs.
Court also heard about a conversation between Jacobs and the youth about masturbation. Although Jacobs asked the youth to flex the muscle in his penis five times, he did not touch him, Considine said. Jacobs has acknowledged his conduct was inappropriate, but that is not a criminal offence.
And because the youth was unable to provide a date and time when the incidents occurred, the Crown has failed to prove he was under 14, he said.
The charge involving the third complainant alleges that Jacobs brushed his hand against the boy’s testicles when he was tutoring him in Grade 8 science. The witness testified that he lay on the couch with his legs over Jacobs’s lap while he was studying.
Jacobs admitted he may have touched the boy but said any physical contact was accidental, brief and not for a sexual purpose, Considine said.
The trial heard that there were prior allegations of sexual misconduct by Jacobs when he was ministering in the Catholic Diocese of Columbus, Ohio.
Jacobs testified that he underwent therapy for the compulsive behaviour that resulted in the Ohio allegations. The essential elements of his compulsion were taking overnight trips with youths to get them alone and teach them how to masturbate.
The Crown alleges that the offences against the second and third youths are a continuation of the compulsive behaviour.
Considine argued that the incidents were not similar and that the complainants did not believe the touching was sexual at the time.
Considine said the tickling incident does not show criminal behaviour by Jacobs, but rather the success of his therapy.
“He was alone hundreds and hundreds of time with [the youth] and exercised self-restraint,” the lawyer said.
The Crown will continue its final submissions today.
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