Video in bondage case misleading, defence says

Missing audio from bar cameras could confirm consensual sex, lawyers for two accused claim

Any video of a bondage sexual encounter, especially with no audio, could be misinterpreted as sexual assault without the proper context, argued defence lawyers for two men accused of sexually assaulting a 24-year-old woman at the College Street Bar in closing addresses Thursday. “What consensual BDSM activity would look OK on video without that context? I suggest to you virtually none of it,” defence lawyer Sean Robichaud told the jury. If one is to say ‘I want a particular type of rough sexual activity. I want to be docile. I want to be submissive.’ If one were to look at a video of that you’d immediately think it was non-consensual.”

(BDSM is an acronym covering a range of sexual practices such as bondage and discipline, dominance and submission, and sadism and masochism.)

The 10 hours of security video of the bar’s main floor, office and storeroom from the night of Dec.14, 2016, have been a central and contested part of the trial.

The Crown has argued the videos show a woman who becomes increasingly intoxicated, and, at some points before and during the initial sexual activity with the two men, goes in and out of consciousness.

The defendants testified the videos show hours of rough, but consensual sexual acts, where the woman is sexually dominated at her request and direction.

At issue is both whether the complainant, who testified she has a hazy memory of what happened that night, but recalls being simultaneously raped and forced to perform oral sex, consented to the sexual activity and whether she had the capacity to consent to it.

Gavin MacMillan, 44, and Enzo DeJesus Carrasco, 34, have both pleaded not guilty to charges of gang sexual assault, forcible confinement and drugging with intent to facilitate a sexual assault. DeJesus Carrasco pleaded not guilty to two additional charges of sexual assault.

On Thursday, the defence lawyers argued the complainant was flirting with DeJesus Carrasco at the start of the night and had a few drinks while her friend was in a bartending class.

DeJesus Carrasco’s lawyer, Uma Kancharla, said the complainant had the ability to leave any time she wanted. Including after the first alleged sexual assault, when DeJesus Carrasco inserted his hand into her pants while they were alone at the bar about 10:30 p.m. They left together 15 minutes later.

When she returned to the bar about 11:30 p.m. with DeJesus Carrasco, the security video shows her staggering unsteadily over to a chair and sitting in it, slumped forward, for about 10 minutes.

Both defence lawyers argued this was a temporary state caused by unidentified pills De Jesus Carrasco said she told him she took, and she appeared to quickly recover while assuring the accused that she was fine.

The sex at the bar began about 12:10 a.m., after the complainant ingested cocaine, and continued until almost 6 a.m.

“There is no question (as the accused testified) that she’d had some drinks and that had an effect on her. But it did not reach the point where it nullified her ability to consent or know what was going on,” Robichaud argued.

Kancharla said the text messages sent from the complainant to a friend the next day, including one where she said she didn’t know what to tell her boyfriend, show “a woman who had a consensual BDSM encounter with two men and she regrets it. We don’t know why, but she regrets it.”

Both lawyers suggested the complainant lied about the sexual assaults to prevent her boyfriend from learning she cheated on him, and because she was embarrassed and didn’t want to admit to her friends what she’d done.

The Crown is to present its closing arguments Friday.