Massage therapist appeals sex assault conviction
SASKATOON Mark Donlevy, the Saskatchewan massage therapist sentenced to three years in prison for raping a woman after their first date in 2004, has appealed his conviction, arguing that the judge did not give him a fair trial.
In a notice of appeal filed with the provincial appeal court this month, Donlevy ’s lawyer says Justice Heather Macmillan-brown “acted on improper principles of law in relation to the stereotypes and myths of complainant’s (sic) in sexual assault cases” and “failed to explain or reconcile the complainant’s inability to recall specific events of the assault from her memory.”
Donlevy ’s trial lasted three days in September; he was sentenced and taken into custody earlier this month. The only witness who testified was the victim, whose identity is protected by a publication ban.
The victim, now 42 years old, told court she met Donlevy through an online dating site in 2004, when she was 28 and Donlevy was in his mid-30s. She said they met for coffee and then went mini golfing, to a drive-in movie and to a club.
They eventually ended up at a home owned by Donlevy ’s parents. The woman said Donlevy led her to a bedroom, took off her clothes, forced her to perform oral sex on him and then had forced vaginal intercourse with her while she cried and told him she didn’t want to have sex.
During the trial, Donlevy’s lawyer argued that it could not be said with certainty that the woman had not consented to sex because there had been a “progression of sexual activity” throughout the date — including consensual kissing and close dancing at the club.
At one point he asked the victim, “There came a time when you were on top of Mr. Donlevy and kissing him, was there any good reason you could not leave?”
In sentencing Donlevy, Macmillan-brown said that kind of argument “is rife with myths and stereotypes about victims of sexual assault” and that she “cannot and will not subscribe to that line of reasoning.”
Defence lawyer Alan Mcintyre said in the notice of appeal that Macmillan-brown “completely misunderstood” his question.
He added that neither Macmillan-brown nor the Crown prosecutor commented on “rape myth thinking ” at the time the questions were posed.
“It is unfair to thereafter take issue with them when they were never subject to commentary by either the Court or opposing counsel,” he wrote.
The 2004 sexual assault was reported to police in 2016 after the victim saw news reports that Donlevy was facing sexual assault charges related to his work as a massage therapist.
Donlevy is scheduled to stand trial next year on 11 counts of sexual assault related to his massage therapy work in connection with incidents alleged to have happened between 2003 and 2016.
A 12th charge of sexual assault related to Donlevy’s massage therapy work was laid this month; he is expected to appear in court on that charge in December.