Mr. J was charged with sexually assaulting Ms. V after she allegedly passed out on his bed with her friend, Ms. K, after a long night of partying. Mr. J’s defence did not challenge evidence that he had sexual contact with Ms. V but contended that it occurred with her consent. Mr. J did not testify during the trial or call any evidence.
In her initial testimony, Ms. V provided detailed descriptions of a long night’s partying at Mr. J’s apartment. She described her state just before the sexual assault as being “falling-down drunk.” During the alleged assault, she claimed that she passed in and out of consciousness, couldn’t remember whether any words were spoken, didn’t know whether Ms. K was still in bed with them, and asserted that she never expressed any consent to the activity to Mr. J.
During the defence cross-examination, Ms. V could not explain the distinct differences between the narrative of the described events in her original taped interview with police and the initial courtroom testimony concerning the narrative. In her taped police interview, Ms. V noted that she had fallen asleep in the bed while “spooning” with Mr. J before the assault occurred. She also told police that her alcohol consumption that night had been “typical,” with no reference to being “falling-down drunk.”
Ms. K’s cross-examination testimony offered no help to Ms. V’s narrative, as she testified that she awoke during the incident to the sound and feel of “shuffling” in the bed. Ms. K assumed this was caused by “mutual fondling and playing with each other” and noted that Mr. J and Ms. V then went into the bathroom, where she believes they showered together. She also rebutted Ms. V’s assertion that she was falling-down drunk and that there had been copious drug use at the party.