Winnipeg Free Press - PRINT EDITION

Rape conviction upheld

Children in bed as mother was assaulted

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Manitoba's high court has upheld a rape conviction in a case in which the victim had no idea she was attacked until her young children disclosed what they'd witnessed.

The accused -- who can't be named to protect the identity of the woman -- was found guilty earlier this year of breaking and entering to commit sexual assault. He immediately filed an appeal, which was rejected Monday. However, the man was able to convince the Court of Appeal his 10-year prison sentence was unfit and got it slashed to five years.

"It is fair to say the circumstances surrounding the offence are unusual," Justice Michel Monnin wrote in a 19-page decision.

The attack happened on a Manitoba First Nations community in 2010 on the same night the victim had been drinking in her home along with several friends, including the accused. She was severely intoxicated and went to bed around 1 a.m., at which time the other guests left, court was told.

The woman passed out in her room while six children ranging in age from a newborn to 11 years old slept nearby. At least two of the kids were in the bed with her. It was a few hours later when two of the woman's children, aged seven and 10, claim they saw the accused go into the bedroom, remove their mother's clothing and force intercourse on her. The woman was unconscious the entire time.

"When the complainant awoke in the morning... she was told by one of the children as to what they had observed during the night. Because she had no recollection of any sexual assault, she ignored this," Monnin wrote in the decision.

However, the woman did notice her front door appeared to have been broken during the night, and her car was also missing. RCMP were contacted and interviewed the woman and her children. It was at that time the 10-year-old disclosed what he saw happen to his mother.

"There is absolutely no physical evidence of a sexual assault, or any evidence from the complainant concerning it," wrote Monnin. "The only evidence is that of the (children), so the case is entirely dependent upon their evidence."

At trial, the judge ruled both children provided credible, believable testimony and found the accused guilty based on their graphic descriptions. The accused challenged the ruling on appeal, saying their word was "too unreliable to form the basis for his conviction."

The Court of Appeal disagreed, saying the judge made a careful and proper analysis in coming to his conclusion. But they did say the judge was especially harsh in handing down a decade-long sentence, saying a five-year stint behind bars is a more appropriate punishment.

The accused has been deemed a low risk to reoffend and comes from a troubled aboriginal background, which the Supreme Court has repeatedly stated must be used as a mitigating factor upon sentencing.

"I consider the sentence imposed to be simply too long," said Monnin.

Republished from the Winnipeg Free Press print edition November 6, 2012 B2

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