Damian's Case — Sexual Assault (Domestic) — Withdrawn

Client:  Damian K., Accused
Complainant:  Sienna, Damian's wife
Charges:  Assault and Sexual Assault

Background:  Damian waited with a heavy heart at the police station. He had arrived over two hours ago, intent on reporting his wife's assaultive behaviour towards him. A police officer finally came over, and told him to go home and that the police would shortly be attending there to take statements. On the drive home, Damian had a sinking feeling in his stomach — an omen, as it turned out. By nightfall, the predator had become prey. Damian found himself sitting in a prison cell, no doubt contemplating how he, who initially went to the police as a victim, somehow ended up being charged with both assault and sexual assault. The next day the Court released Damian from custody, but he was prohibited both from going home and from talking to his wife (common conditions in domestic matters). Damian's wife later gave the police a detailed video-taped statement regarding both the assault and the sexual assault.

READ THE POLICE REPORT

Goals:  When I first met Damian, he was overwhelmed with the unfairness of his situation. He was angry, he was frustrated, and he was in no mood to be patient. I had the unpleasant task of explaining to Damian that the sexual assault charge carried the risk of significant jail time. It also carried the risk of placement on the national and provincial sex offender registries. Damian was not a happy camper. As a professional, however, he appreciated the need to focus on solving the problem, not stewing over it. By the meeting's end, Damian had re-focused his energies. His instructions were clear: get the charges dismissed or withdrawn, and the sooner the better. Wisely, Damian also agreed to attend counselling. The counselling would help with his stress and the marital divide. Damian readied himself for the journey ahead, reaching deep within to find both the patience and the fortitude needed for this challenge.

Strategy — Sexual Assault:  I was anxious to obtain the disclosure. Without it, the Crown and I could not have a meaningful discussion. We were fortunate to receive it quickly. There were no available pre-trial meetings for over two weeks. Our next Court date was closer than that. I planned to meet with the Crown at that next Court appearance. That day soon arrived. My goal at that first meeting was to convince the Crown not to proceed — at least on the sexual assault charge. Here was my pitch. Even though Damian's wife had initially told the police that Damian had forced himself upon her — which the police had dutifully included in the police report — she had significantly minimized the event in front of the camera. Listening to Damian's wife on video, it sounded more like Damian had "forced her" through the power of his persuasive charm. Importantly, she conceded that, at any time, she could have stopped the sex or left the room. I argued that, at worst, Damian's wife was a reluctant but willing participant. I asked the Crown to consider whether they had a "reasonable prospect of conviction" — the test the Crown must apply when deciding whether to proceed. Given the seriousness of the allegations, the Crown wanted to discuss the matter with her superior, a reasonable (and obviously wise) position. The Crown left me in her office. I waited patiently.

Results — Sexual Assault:  When the Crown returned, she indicated that the sexual assault would be withdrawn, but that they would proceed on the assault. The sexual assault charge was withdrawn that day.

READ THE COURT TRANSCRIPT RE THE SEXUAL ASSAULT WITHDRAWAL

Strategy — Assault:  The Crown also hinted that they might consider a peace bond if Damian completed some counselling. The Crown wanted Damian to address the underlying issues that led to the police becoming involved. We scheduled the assault charge for an early trial date. Damian agreed to continue with his counselling. Damian's therapist also made arrangements to counsel Damian's wife.

Results — Assault:  On the morning of the trial, I presented the Crown with the counsellor's report. The Crown, having read the report and having spoken to Damian's wife, agreed to withdraw the charge. But there was one condition. Damian had to sign a peace bond. Damian agreed, relieved to finish the battle bruised but not beaten. The whole process took under four months.

READ THE COURT TRANSCRIPT RE THE ASSAULT WITHDRAWAL