Man committed ‘invasive form of sexual assault’
A man who received no jail time for sexually assaulting his female friend while she slept has been ordered by the Yukon Court of Appeal to spend 14 months behind bars.
A man who received no jail time for sexually assaulting his female friend while she slept has been ordered by the Yukon Court of Appeal to spend 14 months behind bars.
The appeal court overturned the sentencing judge’s decision Thursday, ruling that it was “unfit” and outside the normal range for similar assaults in the territory.
Ashton Reed Rosenthal, 26, was given a suspended sentence and two years of probation by Judge E. Dennis Schmidt last August.
Crown prosecutor Noel Sinclair, meanwhile, had sought a 14- to 18-month jail sentence. He appealed Schmidt’s decision.
Rosenthal was found guilty after a trial in May of last year.
It was the summer of 2013, and Rosenthal and some male friends were having a house party. They invited the woman, and the group spent the night drinking, dancing and DJing.
She had stayed over at the house previously, and asked Rosenthal if she could share his bed that night. He agreed.
She went to bed early in the morning, alone. When she woke up, her underwear had been pulled down and Rosenthal was digitally penetrating her.
She told him to stop, then got out of bed and left the house.
“Knowing Ashton would, at some point, crawl into the same bed does not imply any impropriety or consent, it was simply a matter of sleeping arrangements, and people would be quite at risk if the sharing of the bed was thought to be consent to sexual activity,” Schmidt wrote in his decision.
During the sentencing hearing, Sinclair said the assault would affect the woman’s ability to relate with others, as well as her sexual and psychological integrity.
The judge said this was speculation – she didn’t submit a victim impact statement nor did she get involved with the Yukon government’s victim services branch.
The appeal court’s decision cites this as one of Schmidt’s errors.
When sentencing for sexual assaults, it’s “proper to consider the likelihood of psychological harm to the victim,” Justice Virginia Schuler wrote.
She and the other two appeal judges also noted that the Crown presented a 2008 Yukon Supreme Court decision to Schmidt that reviewed sexual assault sentencing cases in the territory, and found that 12 to 30 months’ incarceration was the norm for “non-consensual intercourse” with a sleeping or unconscious victim.
It appears Schmidt viewed this range as only a “starting point” for sexual assault sentences, when in fact it reflects what’s actually been imposed in the Yukon, the judges said.
As a result, the suspended sentence is a “significant departure” from the norm.
“A suspended sentence does not serve the principles of denunciation and deterrence, which are especially important given the prevalence in Yukon of sexual assaults on sleeping or unconscious victims,” Schuler wrote.
The fact that this assault involved digital penetration, not rape, doesn’t mean it should be excluded from that range, the judges said. Digital penetration is “a serious and invasive form of sexual assault.”
The appeal judges also imposed a 10-year firearms prohibition, finding that Schmidt erred by not doing so.
Rosenthal must turn himself in no later than 48 hours after his lawyer receives the appeal court’s decision.
Comments (23)
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Concerned Female on Jan 17, 2015 at 4:36 am
To "Charles":
I have not voted on your comment because I am not sure what you are talking about. I think that could be the case with the other voters seeing as no one has voted on your comment. You need to clarify what you mean. Are you saying that you shouldn't commit a crime if you don't want to go to jail? I personally think that that is true, and I am glad that the guilty person is going to jail!
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Concerned Female on Jan 17, 2015 at 4:26 am
To "north_of_60": If the attacker had just put his hand on her breast or started kissing her neck and the victim told him to stop and then the attacker stopped then I would agree with you, but having anything inserted into the vagina without consent is rape in my books. For a man to have a person sticking things in his anus, that is sexual assault too! To say that this attacker digitally penetrating his victim is just unconsentual foreplay just shows me how little you know.
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Concerned Female on Jan 17, 2015 at 4:11 am
To "Why ever bother with the pretext of justice" you may have some negative views about the justice system in general, but you have twisted some unfortunate ideas into being just about men and then using those issues to support arguments that this guy should not have gotten time in jail. That is just stupid. You are over stating and exaggerating the reality. He was guilty and was not punished for his crime, so the case was appealed and now he is going to be punished with jail time and a firearms suspension. I think it is as it should be.
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Concerned Female on Jan 17, 2015 at 4:00 am
To the woman who would have just blown it off and to the men who would not have reported this happening to them - bad choice. To change things for the better you have to report and convict and get the counseling you need. To the Yukon Court of Appeal, Justice Virginia Schuler and her two co-workers (as there were three judges involved in the appeal), I commend you for your action of using this guy as an example. I whole-heartedly agree that this kind of sexual assault DOES happen a lot in the Yukon and DOES need to be legally denounced and deterred.
As for what a woman would get in a similar case - what does it matter what sex the assaulter is? If a man woke up at a party where he shared a bed with his male friend after drinking to find his male friend digitally penetrating his anus - I'd hope that the victim would go to court and that the assaulter would be given the same sentence. The same goes for any variation of who did what to whom, such as a woman did this to a woman, or a woman did this to a man. The bottom line is this - this action is wrong, because it is unconsentual, and causes psychological harm to the victim. It should not be condoned, or minimized.
The fact that other unrelated cases that seem to have 'worse' circumstances and were given lighter sentences has no bearing on this case. In my opinion, that sentence of the case in Alaska regarding Eddie Skookum and his 23 year old girlfriend should have also been appealed, but that doesn't have anything to do with this case. There are a billion other cases that we could talk about that might have had sentences that needed to be appealed and were not. The fact is that this one did get appealed, because the Crown prosecutor Noel Sinclair was smart enough to know that by just telling the assaulter that he was bad and slapping him on the wrist would not stop him or make him hesitate from doing it again. No jail time at all is not appropriate for this offense. 14 months is only 2 months shorter than the shortest amount of time typically given for this kind of case in the Yukon (12 to 30 months is the norm). Perhaps, since he did stop when she told him to it should have been 12 months, but they ARE making this case an example so two more months isn't hugely excessive.
Every single day at work I hear on the radio about another sexual assault. They are cracking down on these attacks and I think that it is about time that they did! This BS has to stop.
I once dated a guy that had been sexually molested by his female babysitter as a child, and he never told anyone, and he never got counseling. Guess what, he is an adult married with kids now and still psychologically damaged. The assaulter, whoever she was is still out there possibly babysitting little boys. This is WHY both men and women need to speak out and go to the law. This is why once they go to the law the sentences need to serve as a denunciation and deterrence. I think this is really great, and I hope that the assaulter really knows that what he did was wrong and doesn't do it to anyone again!
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no on Jan 16, 2015 at 3:21 pm
You realize that for boys and men that have experienced sexual abuse/assault - the majority of the perpetrators are male right?
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Charles on Jan 16, 2015 at 2:23 am
OK, you can thumb me down if you want. Regardless of whether victim or offender was male or female, bottom line is 'if you can't stand the heat stay out of the kitchen'.
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Bobby Bitman on Jan 15, 2015 at 4:04 pm
Okay. I went and googled sentencing for sexual assault in an attempt to find even one woman who ever went to jail for sexual assault. What I found was that in a Stats Can survey, 34 of 1000 women and 15 of 1,000 men in the year 2009, reported that they had been sexually assaulted. According to this information, one third of sexual assault victims are men.
Flip the page to sentencing. In the entire list of sentences for sexual assault, I did not find ONE that referred to the victim as a male. Every single person sentenced on the other hand, was male.
So, Ms./Mr. Thought, if you can find me one example of a woman who has gone to jail for something similar to this, let alone for over a year, I would be very interested in seeing it. I did try.
It seems that men simply do not report sexual assault. Perhaps there would be similar sentences if they felt anyone would take them seriously, or that it was not simply a personal matter (one of the reasons given in the survey for not reporting.)
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north_of_60 on Jan 15, 2015 at 1:08 pm
This isn't a case of rape, and there was no violence or aggressive behavior involved. This is a case of inappropriate touching and fondling, which most adults would see as rejected foreplay.
The sentence is inappropriate for the crime committed, which becomes quite clear and obvious if one reverses the roles in the incident. I doubt if anyone would consider more than a year in jail as appropriate punishment for a woman committing the same act of non-consensual fondling.
How can anyone justify that double standard, especially a judge?
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Thoughts2015 on Jan 15, 2015 at 1:04 pm
Bobby:
I got the gist of your argument and those that share it. I just completely disagree.
In my mind, a year or two in jail is quite appropriate for penetrating someone without their permission. Inserting objects into people without their permission is a serious matter and deserves a substantial jail period - regardless of whether you stop after being asked to.
It doesn't matter. You shouldn't have started without clear consent in the first place. Anyone with half a brain should know that.
As for the claim that a woman wouldn't receive a similar sentence. If a woman inserted an object into a man without his consent, and he complained, and it went to trial, I suspect there would be a similar sentence. Where is your proof otherwise? Can you cite any cases? It may be that men wouldn't complain to the police over the matter, for various reasons - that's a thing I could see as realistic - but if it did proceed to a complaint, then I believe it would be investigated and prosecuted in more or less the same way.
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Bobby Bitman on Jan 15, 2015 at 11:56 am
Hey, 'Thoughts', maybe you should put your thinking cap back on and re-read what people actually said.
First of all, whenever people use the word 'clearly' or 'obviously', it is a red flag that the opposite just might be the case.
No body said it was 'understandable' that the guy would sexually molest his sleeping friend, whether she was in his bed in her underwear by mutual consent after a full night of drinking or not. Everybody said what he did was disgusting and unnacceptable, and that he had something coming.
What people are saying is that 14 months in jail for this act is ridiculous. She got up and left and that was the end of that.
People are also saying that if a man was fondled by a woman under exactly the same circumstances, they do not believe for one minute she would be thrown in jail for a year.
Got it?
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Thoughts2015 on Jan 14, 2015 at 5:25 pm
The debate between those supporting the offender and those against him is interesting, and somewhat disturbing. It's obvious that some people here are trying to minimize the conduct of the offender, saying that because they were drunk and sharing a bed that it was somehow understandable that he digitally penetrated her vagina.
I can't condone that kind of thinking. How would you feel if someone put their finger inside you without your permission while you were asleep? I'd imagine you'd be pretty damn angry, and you'd probably feel pretty insecure around other people for a long time. Perhaps forever. That kind of thing can cause significant psychological damage, so trying to minimize it is just wrong.
As for her being drunk and sharing a bed... so what? That's not consent. I have some reservations with how consent is being redefined these days as having to be 'sober' consent to be valid... because then you get the whole problem of people who have a few drinks and are 'buzzed' but still coherent and does that invalidate the consent?
However, this case is obviously not one of those gray areas. The woman was unconscious for crying out loud. You can't consent when you're passed out.
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No on Jan 14, 2015 at 2:59 pm
What circumstances are there to discuss? Does her getting drunk and sleeping in that bed makes what he did any less disgusting or predatory? That answer is no. Why are you so confident that this was a one-time thing and this man won't re-offend? Does digitally penetrating an asleep person sound like normal behaviour to you? Does that sound like something that doesn't warrant jail time? I can't for the life of me see any sort of rational thought process on your behalf other than "well she did x,y,z, so he shouldn't be held accountable for sexually assaulting her".
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melba on Jan 13, 2015 at 7:14 pm
He molested an UNCONSCIOUS PERSON!!!! Victim Blaming! Victim Blaming! It's disgusting.
This is exactly what I am talking about. No rational thought whatsoever. Just some woman was sexually assaulted so let's hope he goes to prison for at least a year! Let's not talk about the circumstances, let's not talk about weighing whether 14 months in prison is appropriate. That would be 'victim blaming'.
Screaming people down and calling them 'victim blamers' when they see injustice in sentencing is getting old. It doesn't work on me, anyway.
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No on Jan 13, 2015 at 4:17 pm
Grossed out by the people here perpetuating rape myths. He molested an unconscious person, how are you people defending him? It's disgusting. The victim blaming has to stop. Stop telling people that by getting intoxicated and sharing a bed with someone that you are the one to blame for someone sexually assaulted AN UNCONSCIOUS PERSON.
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m on Jan 12, 2015 at 7:22 pm
Can this guy appeal the appeal? Geez, I usually would find myself on the other side of the war, for instance like with the chief Eddy Skookum beating the wits out of his 23 year old girlfriend and leaving her unconscious in a parking lot, and getting what? 10 days in jail in Alaska?!
But in this case, whoa. These were two adults, it's not like she was real young or in a position of less power or anything else. She said stop it, he did. She got up and left. They were both pie-eyed by the sounds of it.
I would actually show my face and show up in defense of a review of this crazy sentence. Over a year in jail? I agree 100% that it is extremely unlikely that if the shoe was on the other foot and the drunk female were to have been fondling the drunk male, there's no way in the world she'd be going to jail for a year!
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north_of_60 on Jan 11, 2015 at 4:18 pm
What the man did was wrong; and the original sentence was too lenient. However the recent sentence seems overly harsh, and appears to be more of a reaction to the original sentence, rather than relating to the severity of the offense.
Fourteen months in prison is excessive for a first-offense, non-violent fondling and digital penetration of an adult who was in bed of their own free will, which ceased without incident when told to stop. The man has demonstrated genuine remorse and is unlikely to re-offend.
This isn't justice, this is making an example of someone.
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melba on Jan 10, 2015 at 11:25 pm
You jump into a friend's bed in your underwear after an entire night of drinking. Your drunk friend gets into his bed beside you, pulls down your underwear and starts sexually molesting you, taking advantage of the situation. Disgusting. You tell him to stop get up and leave the room and then leave the house.
He gets over a year in prison for sexual assault.
This sentence seems extreme to me given the circumstances. Honestly, say a drunk woman went back to her own bed in her own house and her male friend was sleeping in her bed in his underwear by prior arrangement. She gets in and pulls down his underwear and starts sexually molesting him. He says, "Cut it out." and gets up and leaves with no further pressure or incident. He goes to the police and says she raped him. She gets 14 months in prison.
Does that sound believable?
I do not feel comfortable with this sentence. I am a woman, I have been at drunken parties and I know how things go. It's not right what the guy did, not at all. It is gross and disgusting and an invasion, just the same as if some drunk chic did the same thing. But come on. If you drink all night and jump in a girls bed in your underwear, and she's drunk too and you know it, what's the chances something stupid might happen? Something you both regret? Well it's the same deal if it's a guy. Going to court over this in the first place took a lot of nerve in more ways than one. I'd have blown it off, though maybe that's not the answer either, I don't know. But I sure do know I feel very uncomfortable with this young man spending 14 months in prison over this.
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Why ever bother with the pretext of justice on Jan 10, 2015 at 12:49 pm
Woe to any ordinary or marginalized man who is charged with sexual assault in today's Canada. Courts are intervening in cases that are marginal or highly contentious, redefining "sexual assault", repeatedly changing the standard for "consent", continually lowering the "bar" defining criminality, preferring the evidence of women over men, removing or eliminating defenses, and bending over backwards to find reasons (however thin) to convict.
The current legal system in Canada has given up on any pretence of justice. Unfortunately, men themselves do not understand what is happening -- until it is too late, and they have had their names and photos plastered all over the media, their reputations and families destroyed, jobs lost, and jail time almost a certainty.
Wealthy and well connected men will always have access to highly paid legal defense and public relations teams. The rest, the majority, will simply go to jail. This is not justice.
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Good on ya, Yukon Justice system on Jan 9, 2015 at 8:07 pm
Hooray! Another Yukon case where rape and sexual assault are taken SERIOUSLY. Thanks for the stories lately that are giving credibility to victims and congratulations Noel Sinclair....keep fighting the good fight.
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Jer the joke on Jan 9, 2015 at 8:02 pm
Hey there JER, How about if this female was your sister, your mother or your girlfriend....then would it NOT be okay because you knew the victim? Or do you always think it's okay to go around and sexually assault people when they're asleep? Clearly this guy thinks like a Neanderthal.
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No on Jan 9, 2015 at 7:30 pm
If a female sexual assaulted an unconscious male victim, then she would be a predator and I sure as hell hope people would care.
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Fawn on Jan 9, 2015 at 4:44 pm
What a ridiculous comment from jer.
So glad this sentence was corrected. Digital penetration is still rape.
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jer on Jan 9, 2015 at 4:20 pm
What if the genders were reversed? Would anyone care? Would it even make it into the news?
Boo, waah, female victims all the time.