HALIFAX – A Halifax-area man has been convicted of sexually assaulting a sleeping woman, in a case likely to add to the growing discourse over sexual consent.
Robert Shawn Burton of Lower Sackville, N.S., told Nova Scotia Supreme Court that he and the woman were engaged in consensual foreplay, and when sexual intercourse began, he stopped when she asked what he was doing.
The complainant testified there was no consent to any sex acts, telling the court she was asleep when the intercourse started early on Feb. 3, 2014.
Justice Joshua Arnold, in a written decision released Monday, said Burton’s version of events was not credible, largely based on a series of text messages Burton sent to the victim after the crime.
In the texts, Burton apologized for his behaviour and did not deny the woman’s allegation, also spelled out in a series of texts.
The assault happened in Burton’s bed after a party with friends that included drinking, smoking marijuana and snorting a white powder thought to be an illegal drug.
“(She) was asleep when she awoke to find Burton having sex with her,” the judge’s decision says. “A sleeping person cannot consent to sex. It is therefore illegal to have sex with someone while they are asleep. Burton did not have an honest but mistaken belief that (she) was consenting as he knew she was asleep when he had sex with her.”
In one of Barton’s texts after the assault, he says, “I feel (very badly) about last night… so out of line… so sorry.”
In another message, Burton says, “I have not stopped thinking about how you must feel … feel so low right now… so sorry.”
The judge said Burton’s testimony during his trial in December and January was tailored to defeat the woman’s allegations and did not make sense when compared with the text messages.
The trial also heard that the woman often used sleeping pills to cope with insomnia, something the judge said Burton was well aware of.
“Whether or not Burton saw (her) take her pills that evening, he was aware that she used sleeping pills and that she fell into a very deep sleep,” the judge said. “I am convinced beyond a reasonable doubt that (she) was under the influence of sleeping pills and was asleep when Burton had sex with her.”
Court heard that the two had known each other for about a year and had had sex on four separate occasions before the party.
“She said that she trusted Burton, considered him to be her friend, was not scared of him and thought it would be safe,” Arnold’s decision says. “(She) said that staying overnight at Burton’s was not a big deal as she had done it previously.”
The woman testified they were not in a relationship, and the court was shown text messages in which she tells Barton prior to the party they should just be friends. As well, the woman testified there had been one occasion when she slept with Burton but there was no intimate contact.
“Through the text messages it was clear that Burton wanted more than friendship, but he would take friendship over not seeing her,” the decision says. “He said that he felt sex was likely with (her) after the Super Bowl party because she had previously referred to him as just a friend and then had sex with him.”
Burton agreed there was no discussion about sex before or during the party, court heard.
When he was arrested on Feb. 8, 2014, he said he wanted a female opinion about his behaviour.
“He may not have been aware that having sex with (her) while she was asleep was illegal,” Arnold said. “In an effort to avoid culpability, he now says that (she) was awake and an active and willing participant in the sexual activity of February 3, 2014.”
The Burton case differs markedly from the recent trial involving Halifax cab driver Bassam Al-Rawi, who was acquitted after Judge Gregory Lenehan said the Crown had provided no evidence of a lack of a consent.
The driver was charged almost two years ago after police found the woman, in her 20s, passed out in the back seat of his car, with her legs propped up on the back of the front seats. The woman testified she had no memory of what happened.
In his oral decision, Lenehan said, “A lack of memory does not equate to a lack of consent.”
The judge said the evidence indicated that Al-Rawi had removed the woman’s pants, but it remained unclear whether he did so with or without her consent.
Lenehan’s decision has sparked public protests and calls for his dismissal.
Al-Rawi’s lawyer said in a statement Monday his client is an innocent man who is being pilloried unfairly. Luke Craggs said his client was found not guilty for legitimate reasons, including a lack of forensic evidence of sexual activity.