A Colwood woman has been convicted of two counts of sexually assaulting a 15-year-old boy in April 2020.
The woman, 26, who texted the boy, inviting him to a “hot-make-out sesh,” has also been convicted of communicating with a person under the age of 16 for the purpose of committing a sexual assault.
Provincial court Judge Ted Gouge acquitted her co-accused, a 27-year-old woman, of sexually assaulting a 14-year-old boy and sexually assaulting a 13-year-old because no evidence of the woman’s age was brought before the court.
In his judgment, Gouge explained that although the evidence clearly establishes that the youths consented to the sexual activity, consent is not a defence if the complainant is between 12 and 14 and the accused is more than two years older than the complainant. Consent is also not a defence if the complainant is 14 to 16 and the accused is more than five years older.
Because the 26-year-old woman is more than five years older than the youth who alleges she sexually assaulted him, the defence of consent is not available to her, said Gouge.
The trial, which took place over five days in late June, heard that in April 2020, the two women lived in separate townhouses in a development in Colwood.
One evening, a group of four boys gathered on the sidewalk outside the 26-year-old woman’s home. The two women were on their way to the liquor store. The boys offered to trade marijuana for a six-pack of Hey Y’Alls, an iced-tea-vodka drink. The women agreed and came back with the six-pack and their own two litres of wine. By this time, a 15-year-old boy had joined the group. They all went to the patio behind the 26-year-old woman’s home.
The two women drank wine. The boys smoked dope and drank the Hey Y’Alls. It is clear, said Gouge, that everyone was intoxicated to some degree. Then the 27-year-old woman began an erotic solo dance, removing some of her clothing.
The 26-year-old woman sat on the 15-year-old’s lap. They began to kiss, then went upstairs and had sex. The other woman had sex with the 14-year-old. Then, she had sex with the 13-year-old, Gouge said in a review of evidence. During a conversation about the boys’ ages, the 15-year-old’s friends said he was 18. People were joking around and it was “confusing,” the trial heard.
The 26-year-old woman testified that the 15-year-old’s friends said he was 18 and he didn’t deny it. “Are you sure you’re 18?” she asked him when they were kissing on the patio, and he said “yes.” She testified she asked him two more times and he replied: “I wouldn’t be here if I wasn’t.”
On April 26, the woman sent a text inviting the 15-year-old to the “hot make-out sesh.” He came over and they had sex on a couch in her garage.
During cross-examination, the woman admitted she was “a little skeptical” that he was 18.
Gouge said he was satisfied beyond a reasonable doubt that the woman was reckless as to the age of the boy.
“She was conscious of the risk that he might be under age 16. … She proceeded to have sex with him despite her skepticism at his answer,” said Gouge.
Given his eagerness to have sex and his obvious intoxication, the woman should have done more than simply ask him his age, said Gouge.
“Asking a young boy, who has been consuming alcohol and marijuana, and who is visibly eager to have sex, to state his age is not a reasonable way to determine his age. In the circumstances of the case, a further enquiry was required of her. She could, and should, have postponed her overtures for a few days to allow her to make enquiries in the neighbourhood. Such a conclusion places the responsibility for preventing adult/youth sexual activity where it belongs: with adults.”
The woman is to be sentenced in March.