Manitoba’s highest court has upheld a sex assault conviction for a man who had sex with the mentally ill victim while she was in the grip of an alternate personality.
The man, identified in court documents by the initials K.G.P., argued at trial the woman initiated and consented to sex after assuming an alternate personality during a mental episode in May 2018.
The woman was later diagnosed with dissociative identity disorder, once commonly referred to as multiple personality disorder.
While the victim was undiagnosed at the time of the assault, court was told K.G.P. knew the victim had suffered what she described as "seizures" which were accompanied by a "switch" to an alternate personality over whom she said she had no control.
“Simply having a mental illness does not equate to not having an operating mind. For her to be able to communicate her consent and withdraw it must mean she is capable of understanding she has a choice… I appreciate she feels she was violated, but we are looking at what her state of mind was at the time.” — Defence lawyer Joshua Rogala
"The trial judge was satisfied that the victim did not consent in the sexual activity and did not have the capacity to consent," Manitoba Court of Appeal Justice Lori Spivak said, dismissing K.G.P.’s appeal on behalf of the court following a two-hour hearing Friday. "She found he did not take reasonable steps to ascertain consent and exploited the victim’s vulnerabilities."
Defence lawyer Joshua Rogala argued Friday the woman actively negotiated what she would and would not do sexually, including a demand K.G.P. not kiss her, showing she was in a position to make her own decisions.
"Simply having a mental illness does not equate to not having an operating mind," Rogala said. "For her to be able to communicate her consent and withdraw it must mean she is capable of understanding she has a choice… I appreciate she feels she was violated, but we are looking at what her state of mind was at the time."
What the victim said at the time is irrelevant, Crown attorney Ami Kotler countered, "all that matters is whether (she) believes she was in control."
"The defence argues we have words suggesting consent, don’t look behind them," Kotler said. "You could say the same thing about a complainant who was intoxicated or muttering in their sleep."
“The defence argues we have words suggesting consent, don’t look behind them. You could say the same thing about a complainant who was intoxicated or muttering in their sleep.” — Crown attorney Ami Kotler
K.G.P. went on trial last year and was sentenced in April to just under 3 ½ years in prison.
At trial, court was told K.G.P and the then-30-year-old victim met in December 2017 while living in the same apartment building. They quickly became friends.
In a text message to K.G.P. the following month, the woman described her mental-health troubles.
"Something would come over me and I would be so out of it and talk in third-person, and my voice would change, and I would have this evil laugh that wasn’t my laugh," the woman wrote. "I would make a growling noise and say evil things… I felt like someone or something was controlling me and making me act a certain way and say certain things that I would never say or do."
The woman testified she had slept over at K.G.P.’s apartment the night before the assault. She said when she woke up the next afternoon, K.G.P. was present when she suffered a seizure and felt like she was going to "switch."
“Something would come over me and I would be so out of it and talk in third-person, and my voice would change, and I would have this evil laugh that wasn’t my laugh,” the woman wrote. “I would make a growling noise and say evil things… I felt like someone or something was controlling me and making me act a certain way and say certain things that I would never say or do.” — Text message from victim to her accused
The woman said her next clear memory was standing alone and naked in the living room, and being sore in her rectal area. When the woman accused K.G.P. of raping her, he claimed: "You told me to have sex with you, so I did."
"No, I told you I had switched," the woman said. "You knew that wasn’t me."
K.G.P. recorded audio of the assault on his cellphone. The woman, in a voice different from her "host" identity, referred to herself as the devil. Six minutes into the 20-minute recording, she urged K.G.P. to "f--- us."
Later, K.G.P. asks the woman to roll over, to which she responds: "We don’t roll over." K.G.P repeated the request several times, telling the woman: "She likes it."
The trial judge rejected the defence argument it was sufficient that one of the victim’s identities was consenting to sex, regardless of her mental state. Queen’s Bench Justice Shauna McCarthy said that position ignored the expert medical evidence of Dr. William Fleisher, who said the victim’s brain would not have been functioning properly during a dissociative-identity-disorder event.
"The tone and quality of the (victim’s) voice and her manner of speaking… can only be described as troubling and, at times, bizarre," McCarthy said in a written decision convicting K.G.P. "I have no question in my mind that any reasonable person, even without knowledge of her mental health problems or diagnosis, would have had concerns about her mental state at the time."
Someone once said a journalist is just a reporter in a good suit. Dean Pritchard doesn’t own a good suit. But he knows a good lawsuit.