A Revelstoke man has been found guilty of sexual assault.
David Galen Anders, 43, was charged with one count of sexually assaulting complainant “S” at his residence during the early morning hours of March 8, 2018.
(The complainant and Crown witness can’t be named due to a court-ordered publication ban designed to protect the identity of the victim. To ensure the anonymity of the complainant and Crown witness, the Mountaineer is using random initials for all parties involved, except the accused).
The two had met at a pub during the late evening hours of March 7, 2018. The complainant was there to celebrate with friends, while Anders had arrived with a neighbour and co-worker, LN. The two groups were introduced through a mutual friend. Later, Anders invited everyone to his place for an after-party, where the complainant and Crown witness said the assault took place.
Anders pleaded not guilty to the accusation of sexual assault and the trial proceedings were held at the Revelstoke Courthouse March 7 and 8, 2019.
In his decision made in Revelstoke court on Wednesday, May 8, Provincial Court Judge R. Dennis Morgan said a key issue in deciding the guilty conviction rested on determining whether the complainant, who is in her early twenties, was capable of giving consent given that she and other parties involved had consumed alcohol during the evening in question. In his decision Morgan asked if the complainant was capable of consent, did she in fact provide it.
“I find the complainant was not able to consent,” Morgan said, stating he found Anders to have been very clearly “reckless and willfully blind about whether he had consent. He did not take reasonable steps to obtain consent. In this case, given the high level of intoxication and the fact they were strangers, reasonable steps should have been much more than those that were taken by the accused. In this case clear verbal consent would have been the minimum threshold.”
Morgan also said he found the credibility of the complainant’s testimony to be solid, and that she used deductive reasoning to fill in gaps caused by the alcoholic blackout she experienced that evening. A toxicology report submitted as evidence indicated the complainant’s blood alcohol level at the time it was taken was well above the 0.08% blood alcohol content most known as the drunk driving threshold.
Evening started off as a celebration with friends, complainant tells court
During the trial on March 7 and 8, 2019, the complainant, S, told the court the evening of March 7, 2018 was spent with friends, celebrating a milestone when they ended up at a local pub.
Anders was also at the pub, having arrived with his co-worker and neighbour, LN. LN told the court he had he knocked on Anders’ door at approximately 8 p.m. and that they watched a basketball game on television for a bit while having drinks. The two eventually made their way to the same pub as the complainant and Crown witness. The two groups were introduced through a friend of LN’s, who was with the group of friends the complainant and Crown witness, D, were with.
Crown counsel Alison Buchanan told the court the complainant was extremely intoxicated and a toxicology report submitted as evidence showed the complainant’s blood alcohol level would have been around 195 milligrams per milliliter or higher at some point during the evening. The complainant said she has very little memory of being at the pub, but Anders told the court that he, the complainant and Crown witness were bantering at the pub and stated he thought there was an attraction between them.
After the pub closed, the two groups were looking for a place to go. According to testimony of both Anders and other witnesses, he offered to have people come back to his apartment. Anders took a cab back to his apartment with the complainant, the Crown witness and another person.
Crown witness D testified that upon arriving at Anders’ place she realized that the complainant, S, was extremely intoxicated and not capable for caring for herself. She stated she had found the complainant in the bathroom throwing up. The complainant was placed in a spare bedroom in Anders’ apartment and was provided with a bowl. In her testimony, D said she recalls asking and being told Anders’ home was a safe place. She recalls Anders assisting her to get the complainant into the bed, but Anders told the court it wasn’t him. Feeling reassured that the complainant was safe, D went up to LN’s apartment with another person, GA, and they had drinks before coming back to check on the complainant about half an hour later. Anders had remained at his apartment to go hot tubbing with other guests.
It was upon opening the door that Crown witness D discovered Anders on top of the complainant. D told the court that she entered the room twice. She said the first time she entered the room she saw Anders performing oral sex on the complainant, and the second time saw Anders engaged in sexual intercourse with the complainant. D said the second time she entered the bedroom she said Anders yelled out “you shouldn’t be here!” According to D, Anders left the room and she then helped the complainant get her clothing on before the complainant ran out of the apartment. GA, who was at Anders’ house, and also at the pub but did not interact much with the group there, was called as a witness for the defense, also told the court he had opened the door to the spare bedroom at one point while looking for Anders and had seen him and the complainant having sex. When questioned by defense council Melissa Klages on whether he was sure he had seen the two having sex, he replied by saying, “Yes, they were doing it doggy-style.”
The complainant, who broke down in tears several times during her time on the witness stand, said she had been consuming alcohol throughout the evening, and when questioned said she had probably drank eight or nine beers. She said she could not recall much of the events that occurred at the pub, including whether she had drank anything other than beer. Anders told the court both he and LN had purchased shots for everyone while at the pub. S told the court her next memory was arriving at a building and then of being in a hallway. Her next memories are of a man, who she identified as Anders, on top of her in a bed, having sex with her. Without looking at Anders during her testimony, S told the court she recalls her friend, D, coming in and asking if she was alright. “He [Anders] told me, ‘Tell her you’re OK,’” S said. Her next memory is of D coming into the room and telling her to put her clothes on. After this she recalls running out of the apartment building and onto the street.
“My friend asked ‘What did he do?’ and I said ‘He raped me.’ I just couldn’t believe it. You never think something like that will happen to you,” S told the court.
Defendant’s testimony conflicts with complainant, witnesses
The court heard from both the complainant and witnesses that after D helped with her clothing, S had run outside the building. The court then heard that D managed to flag down a stranger who took the two to the hospital in their car. The complainant told the court she remembers screaming in the the hospital and being scared. Once at Queen Victoria Hospital, the complainant discovered the only doctor available to see her was male. Unable to cope with having a male in the room, the complainant opted to wait approximately six hours for a female doctor to arrive from Salmon Arm and consented to an exam, completion of a swab kit, and gave her clothing as evidence.
Anders denied multiple times that any sexual intercourse took place between him and the complainant. In his version of events, Anders admitted the two had engaged in oral sex, but when asked directly stated that no intercourse had taken place. This is despite testimony from the complainant, Crown witness D, and defense witness GA stating otherwise. Anders told the court he believed the sexual activity between him and the complainant was mutual. He told the court he had gone to check on the complainant and then “just started kissing her.” When asked what made him think the sexual activity was consensual, Anders said it was the complainant’s actions, such as kissing him back, and reaching her arms up so he could remove her shirt, that led him to believe the acts were consensual. In his decision, Hon. Morgan said that while the complainant may have physiologically responded, it doesn’t diminish incapacity.
In his decision, Hon. Morgan noted the credibility of defense witness GA, who was adamant that he had opened the door to the spare bedroom and clearly saw the complainant and Anders engaged in sexual intercourse.
Complainant still haunted by the assault
In a victim impact statement read to the court by the complainant, she shared how the effects of the assault have remained with her and that she has PTSD from the assault. She told the court that while she was surrounded by friends, and by doctors and nurses there to help and comfort her, she was unable to look anyone in the eye.
“I had suddenly lost all trust in everyone and my mind suddenly started to shift towards thinking everyone around me was there to hurt me. … I can still clearly remember how I felt at that moment … I had to go through invasive tests and swabs which were going to be used as evidence if I decided to make a statement to the police straight after the sexual assault,” she said.
Since the assault, the complainant said she has had multiple breakdowns and has struggled to accept that someone performing a nice gesture, such as opening the door, is not intending harm. The complainant, who has since moved from Revelstoke, says she is not sure if she would ever return.
Sentencing on the guilty conviction is delayed until after July, as Hon. Morgan ordered Anders to meet with a probation officer to have a pre-sentencing report completed.