Photo by Whitehorse Star
A Whitehorse jury has found a 24-year-old man guilty of sexually assaulting a girl under age 16.
The jury returned its guilty verdict on Friday afternoon, concluding Yun Huang’s week-long trial. Deputy Justice Bonnie Tulloch presided.
Andre Roothman, Huang’s lawyer, asked that his client not be taken into custody immediately after the verdict. He wanted a pre-sentence report to be commissioned ahead of the upcoming sentencing hearing.
Crown prosecutors Amy Porteous and Lauren Whyte did not oppose this request, and Tulloch approved it.
Although Huang was not taken into custody, he will still be bound to the conditions dating back to his release before trial.
On Friday morning, Tulloch outlined the rules the jury members would need to follow in their deliberation. She explained that they would have to decide for themselves what evidence they would accept.
She said they could not speculate nor form theories about the facts of the case.
They could only base the verdict on the evidence provided by the witnesses who testified.
They included Huang, Const. Kelly Manweiller and the girl. The jury cannot speculate on information that was not called in open court.
If the jury had any uncertainty about Huang’s guilt, the judge said, the ruling must be not guilty.
If the jurors believe Huang’s story, this too must lead to a not-guilty verdict. In the event that the jury does not believe his story but nonetheless still doubts Huang’s guilt, the verdict has to be not-guilty, the judge said.
Tulloch next laid out the two paths the jury could use to find Huang guilty.
In the first option, the jury would have to determine if Huang knew the girl was under the age of consent or failed to take all reasonable steps to confirm her age.
The age of consent is 16.
Tulloch explained that Huang could have a defence that he had mistakenly believed that the girl was old enough to consent to sex. He testified that he thought she was at least 19 years old because she told him she drank alcohol and partied.
The justice clarified this defence can only be accepted if Huang took all reasonable steps to confirm the girl’s age.
She further explained that the law states an individual cannot have sex with someone under age 16.
She said it does not matter if the minor consented and was a willing participant should the accused not take reasonable steps to confirm the young person’s age.
She said the reasonable steps Huang would need to take will depend on the circumstances of the case. The jury had to decide what these steps should be.
In the event that the jury found Huang had taken reasonable steps to confirm her age, it would now have to deal with consent, the second option.
If the jury found him guilty on the age factor alone, it was sufficient, and the consent issue would not have to be considered.
To find Huang guilty under the second option, the jury would have to determine that the girl either did not consent to any of the sexual activity between herself and Huang or that he did not take reasonable steps to get her consent.
Tulloch added that the girl would have had to consent to each escalating step in the sexual activity with Huang.
This means if the jury found an instance in the chain of events where consent was not given, Huang could be found guilty.
She said the jury had to consider what was in the girl’s mind during the sexual assault.
She explained that the girl’s lack of resistance and demand that Huang use a condom cannot be taken as signs of consent.
She said the complainant saw no other way out of the situation and wanted him to use protection.
She added that the verdict must be unanimous, but each juror can come to his or her own conclusion in different ways.
The justice next addressed the Crown’s burden. She said the prosecutors need to prove several factors to convict Huang.
The Crown would need to prove that Huang had applied force to the girl. This also includes proving the girl had not wanted the force applied to her, and Huang being aware of this fact.
The justice’s last point dealt with misconceptions regarding sexual assault.
She ordered the jury to not approach its verdict based on any misconceptions of what constitutes a sexual assault or the typical behaviour of a victim.
After the verdict was rendered, Tulloch set aside the dates of May 27 and 28 for Huang’s sentencing hearing.
The plan is to have Roothman and Porteous make submissions on sentencing in the morning on May 27, with Tulloch making a decision either in the afternoon or the next day.
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