Judge acquits Bassano man of statutory rape
A judge has found a Bassano man not guilty of the statutory rape of a 15-year-old girl.
Leslie Russel Payne had an “honest belief” that the complainant was of legal age, said Judge Ted Fisher, in a decision handed down Wednesday at the Medicine Hat Courthouse, finding the man not guilty of sexual interference, invitation to sexual touching and sexual assault of the girl.
In his ruling, Fisher said he found that Payne’s testimony was straightforward, and that Payne — who was 23 at the time — had satisfied the onus of taking reasonable steps to ascertain that the girl was of the age of consent. Fisher said both the complainant and the complainant’s 16-year-old friend and witness had inconsistent and contradictory testimony.
Wednesday’s decision follows a two-day trial which took place in December.
According to trial testimony, the girl and her 16-year-old friend met up with Payne on April 6, 2013, and he drove with them around the Bassano area. At one point, they stopped and the two girls asked him to purchase cigarettes/vape for them, which he did.
The girls were dropped off at the 15-year-old’s home in the early evening, but later the two left the house and walked over to Payne’s residence. When he did not answer the door, they entered and woke him up from where he had fallen asleep on the couch. The three proceeded to consume alcohol and smoke shisha.
Testimony from the two girls stated that Payne made two attempts to get the 16-year-old undressed, and they told him to stop and he did. Both girls’ testimony said that they were “blackout drunk” and couldn’t remember various details from the evening.
During the evening, the three went to Payne’s bedroom and had sexual intercourse with each other, something that Payne’s own testimony confirmed.
The 16-year-old girl testified that these sexual incidents were not consensual, but also during testimony said that she was “having a little fun.” The 15-year-old testified that she had not consented, and could not remember much of the incident.
The defence’s argument said that the girls voluntarily participated, which Judge Fisher agreed with in his ruling.
Fisher also agreed with the defence’s argument that Payne had taken reasonable steps to ascertain that the complainant was of the age of consent.
The 15-year-old girl was good friends with and on the same sports’ team as Payne’s sister, with defence saying this led him to believing the girl was the same age as his sister. During testimony, Payne said his sister was 17 to 18 years old, although he was not always able to correctly state her age. Defence also argued the complainant’s physical appearance, that she smoked and consumed alcohol, and that Payne had observed her driving on her own were all things that made him conclude she was the age of consent.
But the Crown argued that these were not enough to make an assumption about the girl’s age — that friendship and sports teams could cover a span of ages, that the girl had a typical appearance for her age, and that smoking and consuming alcohol are unreliable indicators of age.
In Payne’s own testimony, the Crown noted, Payne said that it was not uncommon in Bassano for those under 16 to be driving around on their own, despite not being of legal driving age. Payne knew the girl was in high school and that she was under 18 — because he had purchased cigarettes for her and her friends — and so this should have led him to take more steps to confirm her age, the Crown argued.