TORONTO - A man convicted in Toronto of sexually assaulting his wife has won a new trial after Ontario's top court ruled the original judge made some critical mistakes.
Both the woman and man testified that they had in the past engaged in domination-submission sexual role play, including teacher and student scenarios.
But the wife, who can't be identified, said that on Feb. 8, 2008, her husband came into the bedroom, put his arm over her throat, held her down and forcibly had sex with her while she sobbed and scratched at him.
The husband, however, said that when he initiated sexual activity that night she responded receptively and said "no" in a submissive voice she had used before to indicate consent in aggressive sexual scenarios.
The Court of Appeal for Ontario found that the trial judge, who convicted the husband of sexually assaulting his wife, erred by treating the case as a credibility contest between the two versions of events.
The Appeal Court says the trial judge didn't consider whether the evidence raised a reasonable doubt on the key issues of intent for sexual assault and if the husband had an honest but mistaken belief that his wife consented.
