A 58-year-old convenience store owner has been convicted of sexual assault causing bodily harm to one of his young employees.
On Wednesday, B.C. Supreme Court Justice Arne Silverman found James Hak Cho guilty of the offence, which took place at the store in March 2011.
Cho was acquitted on the charge of administering a stupefying drug to commit the sexual assault. The case has been adjourned until June 19 to set a date for sentencing.
The issue at the judge-alone trial was whether the victim, a 23-year-old Korean homestay student, consented to having sex with Cho and whether Cho administered the drug. Both claimed memory loss from a combination of alcohol and Ativan, an anti-anxiety medication.
Silverman found that Cho, who used a Korean translator during the trial, hired young Asians to work in the store. He found the victim was glad to work and speak Korean with Cho.
Court heard that after finishing work March 4, 2011, the victim told Cho she would go home, have dinner and come back to the store to continue talking and to have some drinks.
She returned to the store at 9 p.m., telling both her homestay mother and her new boyfriend where she was going and why. Cho closed the store and bought liquor and some food. They drank three beers each, then three Korean drinks with a higher alcohol content. Then Cho showed the victim his bottle of Ativan.
Silverman found that young woman had no memory of anything that took place after 1 a.m. until she woke up naked, on the floor, in a backroom at 6 a.m. When she asked Cho what happened and if they’d had sex, he replied “Five times.”
She texted her boyfriend, telling him to come and get her. “I’m soooo not okay,” she texted.
The boyfriend picked her up and took her home, woke up the homestay mother and called the police. The victim was distraught, had difficulty keeping her balance and was in an extreme state of intoxication. She was taken to hospital by ambulance, Silverman said.
A sexual assault examination revealed the victim had bruises or hickeys on her chest that were later found to match an impression taken from Cho’s mouth. His semen was also found on her trousers.
During the trial, a toxicologist testified the victim was “very heavily intoxicated” shortly after 1 a.m. with significant impairment, disorientation, confusion, poor judgment and possible loss of consciousness.
Cho testified that when he showed her the pills, she put several in her mouth.
“It was unexpected and happened quickly,” Cho said.
He said the young woman kissed him and when he kissed her back, she seemed happy. Over the next few hours, they had mutually consensual sexual activity, Cho testified.
Silverman said he was not satisfied beyond a reasonable doubt that Cho surreptitiously slipped Ativan into the woman’s drink or gave her pills in any manner.
“Frankly, I think it is more likely than not that he did so, but I have a reasonable doubt about that.”
The judge noted that Cho took photos of the girl naked on the floor, either asleep or unconscious, then later deleted them.
The law is clear that consent must be continuous and ongoing. If the victim is so intoxicated she loses her ability to withdraw consent, even by self-intoxication, there can be no consent from that point forward, Silverman said. “She did not consent and she did not have the capacity to consent from 1 a.m. onwards.”
