TORONTO — A male strip-club performer convicted of sexually assaulting a woman who paid him for a lap dance should get a new trial because the judge relied on stereotypes of how women behave, Ontario's top court ruled on Thursday.
In quashing the conviction against Damir Cepic, the Court of Appeal faulted the judge's reasoning in deciding the complainant, 23, did not consent to sexual activity with him.
"The trial judge's path to conviction rested largely on a series of erroneous assumptions about what a young woman would or would not do in the circumstances of this case," the court said. "The conviction must therefore be set aside."
The case arose in March 2016, when the woman, identified only as OI, and seven girlfriends went to the Foxxes Den in Toronto to celebrate a birthday, court records show. It was OI's first time at such a club.
During the evening, OI paid Cepic $10 for a lap dance. He would testify she reached into his pants to touch his private parts, something she would deny. She then paid Cepic, 29, another $40 for a private lap dance. This time, court heard, she performed oral sex on him and he briefly penetrated her.
Cepic testified at trial before Superior Court Justice Anne London-Weinstein that he was already having intercourse with the woman and about to ejaculate when the woman said, "no, I have a boyfriend." She denied saying that and testified she told him, "no" and tried to push him off her.
After the dance, OI texted a friend wondering what to tell her boyfriend. She also said she was worried her father, a police officer, would be furious, court heard.
When her then-boyfriend arrived to pick her up, she told him she had been sexually assaulted, court heard. She reported the incident to police several hours later. Police charged Cepic with sexual assault.
The only issue at trial was consent. OI argued she was forced into fellatio and intercourse. Cepic, described as a hard-working and trustworthy father, said the woman had been a willing participant.
London-Weinstein sided with OI, saying she found the complainant reliable and credible, and Cepic self-serving.
For example, the judge rejected Cepic's evidence that OI had touched him sexually, saying it was unlikely the woman would have done so on her first-ever lap dance. The judge also called it "completely implausible and nonsensical" that OI would have told the accused about her boyfriend just as he was about to climax.
London-Weinsten convicted Cepic and jailed him for two years less a day.
Cepic appealed, arguing the judge had relied on stereotypes and assumptions, while OI maintained London-Weinstein was entitled to rely on common sense assumptions about basic human behaviour.
In its analysis, the Appeal Court warned the common-sense approach to assessing credibility is "fraught with danger," and London-Weinstein had unfairly made assumptions about female behaviour in accepting OI's testimony and rejecting Cepic's.
"The trial judge started from the assumption about what a young woman would do in a strip club and carried that theme throughout her analysis," the Appeal Court said. "(Her)determinations about what 'made no sense' or was 'implausible' were blatant assumptions, unsupported by the evidence."
The judge, the Appeal Court said, ignored the context in which OI found herself.
"The context was significant: a women's only party in a highly sexualized environment involving alcohol and male dancers," Justice Mary Lou Benotto said for the Appeal Court.
London-Weinstein, the higher court said, also appeared to resort to stereotypes about male aggression when she rejected Cepic's evidence that OI had come on to him and found he had taken advantage of a "stunned and confused" young woman.
