Sunday, March 7, 2010

Oh My God, You Aren't Your Twin Brother!

This story of identical twin brother confusion and "sex assault" arrives via the Toronto Sun, Sam Pazzano's story:

"She was inebriated and sleeping in her lover’s darkened bedroom and she believed it was her lover who cuddled next to her in bed.  But he had sex with her in a way they never had before. She was alarmed by it. When she turned on the bedroom light, she discovered to her disgust that it wasn’t her lover but his identical twin.

'Oh my God. Oh my God. Oh my God,' she recalled saying on that day in 2006 as she grabbed her clothes after she realized what happened.

He [BL: it's one of the oddities of the foreign press that names are omitted from stories--stateside we'd know the guy's name from the moment he was arrested, in fact as you might have figured out from the Al Garcia, Esq. story witnesses in these sorts of cases come forward as a result of reading or hearing news accounts] was convicted of sexual assault two years ago and sentenced to six months imprisonment in 2008, but lawyer Peter Copeland argued Thursday at the Ontario Court of Appeal that the trial judge made several legal errors in finding his client guilty. He asked Ontario’s highest court to quash the conviction and order a new trial for the now 30-year-old man, who is now free on bail pending the court’s decision.

Both the accused and the woman cannot be identified due to a publication ban on the victim’s identity.  The accused said he had an 'honest but mistaken belief' that she had consented to having sex with him, court heard.  'It would be a rare case that an accused committed a fraud and then got the benefit of the honest but mistaken belief,' Crown attorney Kim Crosbie told the Court of Appeal panel. The three judges heard arguments over whether the woman properly gave her consent or whether her lover’s twin duped her and thus negated that consent."
Strange story, but a unifying theme in almost all rape cases is the use of alcohol as a weapon.  While I'm not so sure this guy made an "honest mistake," this is one of those scenarios laden with doubt.  This joker was obviously a pig, but did he commit assault?  Assault technically is the threat of unconsented touching, at least stateside.  What's being described in this story is "sexual battery."  Battery is unconsented touching. 

There is a whole body of law, (no pun intended) relating to "mistake."  What we might have, here, is the notin of mutual mistake which is where both parties have the same intention but a transaction occurs because of a mutual mistake of fact.  I think Shakespeare may have played with these concepts?

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