Instagram evidence convinces B.C. judge teen was 'set up' on sexual assault charge

WARNING: This story contains graphic details of the encounter

A B.C. provincial court judge has acquitted a teenager of sexual assault after a trail of Instagram evidence suggested the boy was "set up" by a "callous" classmate who stoked his erotic fantasies before seeing him expelled and arrested.

In a decision that details the intersection between social media, high school intrigue and teenage sexuality, Judge Patrick Chen noted that the accused — known as H.S.S. — was a lonely immigrant who was new to school, whereas the alleged victim had many friends.

The 16-year-old girl testified she had no idea what to expect when she found out the boy — who was also 16 — wanted to meet in a bathroom on the morning of a school day in May 2019.

But Chen found the girl's testimony about the allegedly non-consensual "make out" session that followed lacked the ring of truth or "even the air of reality." 

The judge preferred instead the "unshaken" word of the accused, who kept 2,000 steamy Instagram text messages the pair exchanged in the days leading up to the incident — posts the alleged victim deleted after deciding they weren't "relevant" to her claims.

"In my view, even the evidence of the complainant leads to the inescapable conclusion that the accused was indeed 'set up,'" Chen wrote.

"Her own evidence presents the complainant, her sister and her friends, as people who are clearly comfortable with deception and manipulation — who find deception and manipulation of others to be 'fun,' speaking about the deception of the accused as though it were a sport."

'Im sorry. I really am deeply sorry'

The names of the students and the school are redacted under the terms of the Youth Criminal Justice Act. The trial took place in Richmond, B.C.

According to the judgment, the alleged victim claimed two of her friends were in control of her phone when H.S.S. — who sat a few seats behind — sent an Instagram message asking to meet in a nearby bathroom.

She claimed her friends told her to go to the meeting, but not the reason. She also claimed she didn't check the messages when she took back her phone before heading to the meeting.

Once in the bathroom, the girl claimed H.S.S. kissed her, put his right hand on her buttock, placed his hand on her breast over her clothing and then showed her his penis after she said she didn't want to see it.

"The complainant testified that the accused had not asked her if he could kiss her or put his hands on her butt, her breast or anywhere else on her body, and that she had not consented to any of the things he had done to her in the bathroom," Chen wrote.

The girl said she and H.S.S. exchanged Instagram messages before and after the alleged assault, and she gave police screen shots of ones she deemed "relevant" — in which the accused said, "Its my fault. Im sorry. I really am deeply sorry."

She deleted the rest of the record of their online conversation from her phone.

'Mutual and enthusiastic interest' in sexual encounter

H.S.S. testified on his own behalf. He also kept all his old Instagram messages.

H.S.S. said he could clearly see the girl reading and responding to his texts in the minutes before the bathroom meeting. 

Once in the bathroom, he claimed the pair engaged in "French kissing" and he placed his hands on her body as she touched his penis over his clothing.

"According to the accused, the complainant acted as a willing participant in everything that took place," Chen wrote.

That left the judge with the social media record, and a pre-trial decision on the admissibility of screenshots of the Instagram messages, which filled 233 pages of a binder.

The Criminal Code prohibits using a victim's prior sexual history as evidence, if it's intended to make them seem less believable or to support the inference that they would be more likely to consent to sexual activity.

But Chen found the correspondence was an exception to that rule, because it provided evidence about the sexual encounter at the heart of the case.

The Instagram messages, which were sent over four days, were as graphic as they were prolific.

"These messages, read as a whole, seemed to indicate a mutual and enthusiastic interest … in meeting in person for the purposes of a sexual encounter," Chen wrote.

Asked 'if he'd ever been arrested'

No matter what was promised on social media, the judge said the alleged victim could still have changed her mind and withdrawn consent.

But her "implausible" testimony was full of inconsistencies that gave him "grave" concerns about her truthfulness.

The teen denied knowing anything about most of the Instagram messages — claiming her sister must have impersonated her online without her consent.

"[She] offered no reasonable explanation as to why her sister would promise the accused, in explicitly graphic detail, what sex acts the complainant was prepared to engage in with the accused," Chen wrote.

He added that it was "inexplicable" that the girl's sister was not called to testify.

Among the Instagram messages the alleged victim deemed "not relevant" for police was an exchange immediately after the pair left the bathroom, which she began with the word 'lol."

The accused claimed that the next time he saw the alleged victim after the incident, her demeanour had completely changed. She ignored him and talked only to her friends.

"Prior to the bathroom incident, one of the complainant's friends had asked him if he'd ever been arrested," Chen wrote. 

"According to the accused, when he saw the complainant's change in demeanour, he felt that he had been 'set up.'"

The boy testified that he felt he had no choice but to say sorry.

"He became fearful and felt that the best way for him to resolve matters would be to be agreeable and apologetic ... notwithstanding that he felt he had done nothing wrong," the judge wrote.

"It would appear [she] 'just didn't care' about the accused's feelings for her, that his feelings were something for her and her friends to 'have fun with' at the accused's expense."