Accused sailor says he wasn't comfortable telling police about homosexual acts

A military judge is expected to render a decision Monday in the court martial of a Halifax sailor accused of sexually assaulting a subordinate.

Lawyers for the prosecution and defence gave closing arguments in a Halifax military court on Saturday, both of which largely turned on the question of whose version of the events aboard the HMCS Athabaskan in November 2015 is to believed — defendant Master Seaman Daniel Cooper or the alleged victim, whose name is protected by a publication ban.

Prosecutor Maj. Dominic Martin began his submissions by arguing that Cooper and the junior officer's accounts of the night of drinking before the alleged incident were "pretty compatible" up until when the sailors returned to their sleeping quarters on the navy destroyer, which was docked in Spain as part of a NATO exercise.

But that's where their testimonies diverge, lawyers on both sides said.

Cooper, a naval communicator at Canadian Forces Base Halifax, has pleaded not guilty to sexual assault and ill treatment of a subordinate.

The alleged victim has testified that he awoke in his bunk to find Cooper performing oral sex on him.

Under cross-examination Saturday morning, Cooper maintained that he twice asked the junior sailor if he wanted to engage in sexual activity and the other man agreed.

Martin questioned Cooper about what he characterized as inconsistencies between his testimony before the court martial this week and portions of a filmed interview with military police Cooper gave in March 2016, which was voluntary and not sworn under oath.

'It's not an easy thing to talk about'

Cooper told the court martial he withheld certain details during the interview because he did not feel comfortable talking to investigators about a homosexual encounter, but said the account he gave investigators was largely accurate aside from the omission of what he says was a consensual sex act with the junior sailor.

"It's not an easy thing to talk about, going into the details of a homosexual act with people who aren't homosexual," Cooper said, adding that interactions with military police prior to the interview led him to believe the investigators were not interested in hearing his side of the story.

Cooper testified Friday that after a night of drinking, he and the junior sailor went back to their sleeping quarters, and as they were talking by the other man's locker, he noticed that he had become aroused.

Cooper said he asked the junior sailor if he wanted to become intimate and the other man agreed. Cooper told the court martial he then followed the other man to his bunk, asking him another time if he wanted to become intimate before engaging in sexual activity.

He said he performed oral sex on the subordinate, and that the man didn't tell him to stop until about 10 minutes later when he sat up and said, "I'm not gay," at which point Cooper said he immediately returned to his own bunk.

During closing arguments, Martin asserted that Cooper fabricated the alleged conversation near the locker in an effort to "absolve" himself of guilt.

Debate over consent conversation

Defence counsel Maj. Phillipe Boutin argued that it was the alleged victim's account that lacked credibility past "the point of no return."

Boutin said the alleged victim testified that he could not remember many details during the period of time in question, especially those that may put him in "a bad light."

However, Boutin said, the junior sailor was "adamant" that the alleged conversation by his locker did not occur.

Martin said the alleged victim had no reason to take note of the details of the night the incident allegedly occurred until he was awoken in his bunk to a superior sailor performing oral sex on him, at which point he became very "attentive."

Emotional testimony

On Wednesday, the alleged victim told the military court it was dark and he couldn't really see, but he recognized Cooper's voice.

He became emotional in the courtroom as he spoke about fearing for his safety and attempting to alert a crew member in the bunk below him — but he said his pleas for help went unanswered.

The sailor from the lower bunk testified Friday that he remembered the alleged victim attempting to wake him up on the morning in question.

The bunkmate said the two men then reported the incident to a superior.

Verdict expected Monday afternoon

Boutin said Saturday that if the alleged victim had wanted to withdraw consent, he should have communicated that to Cooper, not his bunkmate.

Boutin reminded Military Judge Cmdr. Sandra Sukstorf that the prosecution bears the burden of proving the sexual-assault charge beyond a reasonable doubt, and said if Sukstorf had reason to believe that the alleged conversation near the locker occurred, she should find Cooper not guilty.

Martin said if she decided the alleged victim was unconscious when the sexual activity began, she would have to rule the other way.

Sukstorf said she expected to reach a verdict by Monday afternoon.