The B.C. Court of Appeal says a man convicted of sexually assaulting his wife deserves a new trial because messages between the pair about a consensual "rape role-play" scenario were wrongfully excluded as evidence.
The ruling released on Friday says the complainant and accused, who can't be identified under a publication ban, were married but separated at the time of the alleged sexual assault in November 2019.
The ruling says the husband claimed during the trial that his wife "agreed to participate in" and "instigated" a so-called "rape role-play" scenario, after they exchanged sexually explicit Facebook messages the night before the alleged assault.
The ruling says the woman sent her husband a video message including the sentence "'Reblog if you’re into Rape Play" followed by an exchange that included the wife describing her fantasies.
The trial judge had found the messages weren't relevant, but the three-judge appeal panel disagreed, finding that the messages about "a stranger rape and feigned sleep" were relevant to whether the act was consensual, or whether the accused had an "honest but mistaken belief" there was consent."
The panel's ruling says the trial judge failed to consider the relevance of the messages in connection with a later conversation, on the day of the alleged assault, in which the husband said his wife described when they "would start role playing."
The ruling says that left the accused to testify as if the conversation "occurred out of the blue, rather than as a follow-up to a discussion that the complainant initiated and participated in."
