Photo: File photo

Reader advisory: This story contains descriptions of sexual assault.

A man has been found guilty of one count of sexual assault in Penticton Provincial Court on Friday morning, after the judge found his claim the act was consensual discredited by evidence of his attack on the woman.

The offence dates back to August 2023, when the accused assaulted a woman who had come over to a residence in Trail with him and another friend. The suspect cannot be named to protect the identity of the victim, which is covered by a publication ban.

Penticton provincial court Judge Lynett Jung explained her decision on Wednesday she found the victim's testimony reliable and credible.

Evidence from the forensic nurse examiner was presented to the court, who had examined the victim at the Penticton Regional Hospital the day after the assault.

The court heard that the victim had gone over to the accused's bedroom suite in the evening of Aug. 18, 2023 to hang out with him and a friend.

She had brought along some alcoholic beverages to enjoy, and planned to stay overnight because she would be drinking.

"She said she was supposed to work midday on the 19th and said that she was a moderate drinker. She testified she kept her drinks in her bag and pulled them out as she consumed them," Jung said.

Evidence about the events of the evening before the victim went to bed generally corresponded with the evening's event as described by the accused and the friend.

The victim testified that both the accused and his friend drank more than her and that the accused became more intoxicated as the evening wore on.

Eventually, she headed off to bed alone while the other two stayed up to drink and play a game. The accused testified that he had about 18 beers over the course of the day and night.

The accused stated that the victim asked him if he would like to come to bed at the same time as her, which she denied asking.

The victim later woke up in the accused's bed when he joined her. She said that they engaged in cuddling and consensual sexual touching.

"The complainant was very clear. She said the sexual activity was consensual until it was not," Jung said.

Then the accused bit her thighs, her vaginal area and hurt her when he initially penetrated her anus. The victim said she repeatedly told him to stop and that he was hurting her.

She said she eventually gave up, because he was not stopping, despite her express pain and direction to stop.

Soon after the accused stopped touching her, she gathered her belongings and left.

"She indicated that he sprung up as she was leaving and asked if he had done something wrong. She said 'Yes', but she couldn't talk about it with him right then. After leaving, she said she and the accused engaged in messages on Facebook Messenger," Jung said.

The victim went to the hospital in the late morning of Aug. 19, 2023 and then reported the alleged offence to the police.

"I found [the victim] to be a straightforward witness who answered questions directly and made reasonable concessions. She admitted when she could not remember the exact sequence of events for full conversation," Jung said.

"However, she was clear and unshaken on what the accused did and the fact that she told him to stop as he was hurting her. The complaint of evidence is corroborated by the injuries documented by the forensic nurse examiner."

The victim said that these injuries were painful and the hospital examination was traumatic.

The accused denied fighting her, said that he only 'nibbled' on her thighs and said that he checked in with her verbally as he performed the oral sex and anal sex.

He said she never told him he was hurting her and never said that he should stop. He told the courts he decided to stop the sexual activity and rolled over to go to sleep because he was tired.

"I do not believe the accused. His evidence does not align with the physical evidence. The accused was intoxicated, and I do not find him to be a credible nor reliable witness about what happened," Jung said.

Jung said she found him guilty of sexual assault.

The accused will be sentenced at a later date, after conducting a pre-sentence report and a psychological assessment with respect to the risk of sexual recidivism.