A man has failed to convince a B.C. judge that he had an honest but mistaken belief that his date consented to sex.
As a result, Franck Yvan Tayo Tompouba was found guilty of sexually assaulting the young woman he met through Tinder, a digital dating service.
The incident happened in the early morning of December 23, 2017 after the two went out on a date in Kamloops the night before.
“The complainant testified that earlier in the day she had told Mr. Tayo Tompouba that she had her period,” judge Leonard Marchand wrote in his reasons for judgment. “She says that she intended this as a signal that she did not want to have sex with Mr. Tayo Tompouba.”
In addition, the woman testified that she does not like or want to have sex when she is drunk.
The woman took the man home as her parents were away.
She testified that she gave Tayo Tompouba a kiss, rolled over to face away from the man, and fell asleep.
“The next thing the complainant remembers is waking up with Mr. Tayo Tompouba’s penis in her mouth. He was not wearing a condom,” the judge recounted the woman’s evidence.
According to the woman, she “closed her eyes again and pretended to be asleep”.
“She felt scared, nervous, confused and betrayed. She realized that she did not really know Mr. Tayo Tompouba,” the judge wrote. “Even though Mr. Tayo Tompouba had never been violent or threatened her, she was afraid that he might turn violent.”
The man later “took her underwear off and put his penis in her vagina in the missionary position”.
“Mr. Tayo Tompouba whispered in her ear asking if she was awake. She did not answer and continued to pretend she was asleep. The complainant says Mr. Tayo Tompouba went slow at first and then went faster, eventually ejaculating inside her,” the judge wrote.
Tayo Tompouba offered a defence of honest but mistaken belief that the woman communicated consent.
He advanced two theories.
“In his first theory, Mr. Tayo Tompouba submits that he initiated sex with the complainant while she was awake and that he believed she communicated her consent through her responsiveness,” the judge noted. “If the complainant passed out during the course of the sexual activity, Mr. Tayo Tompouba submits that he did not notice. When the complainant later woke up, he submits that she did nothing to alert him to her change of heart.”
In his second theory, the judge wrote that Tayo Tompouba also submitted that he initiated sex with the complainant while she was awake and that he believed she communicated her consent through her responsiveness.
“Even though Mr. Tayo Tompouba believed that the complainant subsequently fell asleep, based on her own testimony, that was not true,” the judge noted. “She was actually awake yet did nothing to alert Mr. Tayo Tompouba to her change of heart.”
However, judge Marchand rejected the two theories.
“The first theory fails because a critical element of it is not grounded in the evidence. Specifically, even if the complainant passed out after having communicated her consent to vaginal intercourse, there is no evidence to suggest that Mr. Tayo Tompouba did not notice.
“During the trial, Mr. Tayo Tompouba testified that the complainant was fully awake and actively responsive throughout. In his statement to the police, he stated that he knew she was asleep. On the evidence, either Mr. Tayo Tompouba thought the complainant was fully awake or he thought she was asleep. There is no basis to conclude that she was asleep but he did not notice,” Marchand pointed out.
According to Marchand, the second theory also fails because “even if the complainant was awake throughout, if Mr. Tayo Tompouba mistakenly believed she was asleep, there was no objective basis for him to honestly believe she was still consenting”.
“The onus would have been on him to take reasonable steps to ensure she was. There is no evidence that he did so. In fact, there is no evidence that he took any steps whatsoever,” Marchand wrote.
Marchand noted that the criminal code requires “ongoing, conscious consent” to “each and every sexual act”.