Crown says story told by Regina man accused of rape on Plenty of Fish date is 'preposterous'
Bonnie Allen | CBC News | Posted: June 10, 2019 10:17 PM | Last Updated: June 10, 2019
Defence maintains woman initiated sex, closing arguments focus on ways she didn’t fight or yell no
Warning: This story contains graphic language and disturbing content.
Regina prosecutor Randene Zielke argued that to find Gioulian Nikdima not guilty of sexual assault, Justice Fred Kovach would have to ignore compelling medical evidence and believe the alleged victim was, "spiteful and vindictive toward this man she barely knew."
"Which is preposterous, to say the least," Zielke said Monday during closing arguments in Saskatchewan Court of Queen's Bench.
Nikdima, 49, has been charged with sexual assault causing bodily harm.
A 48-year-old Regina woman said she connected with Nikdima on the internet dating site Plenty of Fish and then met in person for a first date in March 2016. She told the court that a coffee date with a charming gentleman ended with him driving her outside city limits and raping her.
The woman, who cannot be identified due to a publication ban, testified that Nikdima yanked off her pants and forcibly penetrated her vaginally, pushed her face down to perform oral sex, then penetrated her anally.
"I felt frozen," the woman testified.
Defence questions 'inconsistencies'
Defence lawyer Barry Nychuk said in his closing argument that the woman's testimony isn't reliable, pointing to examples in which her wording changed from when she was first interviewed by police in 2016 to her wording in the 2019 trial.
"The evidence has changed. It has evolved. It has become more damning to the accused, and it is because of the reconstruction of her memory," Nychuk said, arguing that the alleged victim has pieced together a version of events "that she can now live with."
Nychuk didn't address the fact that his client's story changed significantly over the same time period.
At the trial, Nikdima claimed that the woman was the aggressor and initiated sex, alleging that she yelled, "F--k me, f--k me." Nikdima did not share that version of events with police when he was interviewed after his arrest in 2016.
Nychuk dedicated much of his 46 minutes of oral submissions to the fact the woman didn't try to run away, fight off the man, or repeatedly yell "no."
He argued the woman didn't say that she explicitly told Nikdima "no" until after a police officer prompted her to do so.
You would have to believe that she's a crazy, spiteful, vindictive person. - Randene Zielke, Senior Crown Prosecutor
He argued that the woman's description of how Nikdima picked her up "like a rag doll" and manoeuvred her around in the backseat so that he could penetrate her from behind was "illogical."
"She is a non-willing, non-actively participating person who is 'frozen'...although I don't quite understand that...and yet my client is able to pick her up," Nychuk says, conveying skepticism. "It doesn't make sense."
Nychuk also questioned the woman's credibility based on her explanation that she got into the backseat of the vehicle to get her purse instead of trying to run away in the open field.
Kovach stopped Nychuk at that point, and said, "But wasn't her phone in her purse?"
Alleged victim is 'credible and reliable'
Zielke, a senior Crown prosecutor, argued that the alleged victim was "credible and reliable" and that her testimony was supported by corroborating evidence, including injuries documented during a five-hour exam.
Sexual assault nurse examiner Stephanie Carlson told the court that she has conducted more than 600 rape exams and only once before has she seen an external anal injury as large as the one found on this woman.
Zielke took issue with the defence's detailed submission on what the woman "didn't do" and said "implied consent" is not based on law.
"Consent is not the absence of 'no.' It is the presence of 'yes,' " Zielke said.
The prosecutor cited the Supreme Court's directives on how consent must be obtained. The highest court has ruled that a lack of resistance does not imply consent and that consent that is given under duress or based on fear does not qualify as true consent. In this case, the alleged victim said she was terrified.
The Supreme Court also stipulates that consent for one sexual act is not universal consent for all sexual acts.
Justice Kovach interrupted Zielke several times to clarify that if he believes Nikdima's claim that the woman said "f--k me, f--k me" that it would count as explicit, not implied, consent.
Zielke countered by urging the judge to consider the plausibility of the man's testimony when he said the woman guided his penis easily into her anus, without lubrication or force.
"This is simply not believable...Why was she hurt so badly?"
Alleged victim's motive
Zielke said the woman did not embellish or exaggerate what happened. She cited several examples in which the woman's actions were consistent with her story, and not the man's.
For example, Nikdima claimed that he offered to use a condom but that the woman refused and said, "I'm safe." Zielke said the man's story isn't credible since the woman spent a year after the alleged assault undergoing blood work and testing for sexually transmitted diseases, actions that are not consistent with someone who voluntarily foregone a condom.
When the woman got home, she deleted her Plenty of Fish account immediately.
Zielke also questioned what motive the woman would have to falsely accuse a man that she barely knew, and subject herself to the humiliation and intrusion of a sex assault exam, multiple police interviews, a preliminary hearing and a prolonged trial that, altogether, spanned three years.
"You would have to believe that she's a crazy, spiteful, vindictive person."
Kovach is scheduled to deliver the verdict on September 5.