[Due to a publication ban, no identifying details about the complainant may be published. For purposes of this article, I shall call the complainant “W” instead of the unwieldy phrase, “the woman.” I will also use both “the complainant” and “the victim” where I believe they are appropriate within the context of the story.]
Two years after W reported that she had been raped over the Christmas holidays by an on duty Royal Newfoundland Constabulary officer, after a trial that lasted almost two weeks and jury deliberations that went for almost two days (and looked, at one point, to be heading towards a hung jury), Constable Carl Douglas Snelgrove was found “not guilty.”
Within two hours, a protest had grown out of the dark, rainy night on the front steps of the courthouse in downtown St. John’s. One sign read, “Don’t rape on the job; Don’t rape ever; Abuse of power erases consent.” Another read simply “I am very mad.”
The Complainant, The Accused,
and Their Movements That Night
On the night of Saturday, December 20, 2014 a woman, “W”, twenty one years old, went to a friend’s house in Mt. Pearl for drinks and chats. After midnight, the group of four, two men and two women, took a taxi downtown to a club called Velvet (now The Factory.) After some hours at the club, W left on her own.
Constable Snelgrove was on duty that night. A patrol officer, he was assigned to zone J-6 in St. John’s, NL. J-6 extends from the Village Mall and Mundy Pond to Shea Heights and includes downtown. At 2:08am Sunday morning, December 21st, Snelgrove responded to a call for assistance when a man was ejected from The Sundance bar for harassing female customers.
Sundance staff was, according to their policy, refusing to give him his coat since he could not find his coat check ticket. Snelgrove intervened on the male’s behalf and retrieved the coat from staff. By 2:46am Snelgrove had taken the man to lock-up as he had determined the man was extremely intoxicated and unable to care for himself. Around 3am, Snelgrove was back in his cruiser, parked outside the lock-up, facing Water Street working on paperwork.
Around that same time, W remembers deciding to leave the club to try to get a taxi home because she “felt too drunk to be out.” She remembers standing at the bottom of the steep steps of the alley leading up to the club.
She says it is possible she may have fallen on those stairs because she had bruises on her knees and legs when she woke up. She remembers seeing the marked police cruiser. She does not specifically remember walking down Water Street to where the GPS indicates the cruiser had been parked.
Constable Snelgrove either offers her a ride, or she asks him for one. Either way, he did open the back door of his cruiser, she got in and he drove to her home.
The GPS in his cruiser shows he left Water Street at 3:12am. Around this time, likely after W was already in his car, he alerted RNC Communications (Comms) that he was done with drunk Sundance man. He did not mention that W was in his car. At 3:16 he was contacted and told to call in.
At 3:17 he calls in and, again, does not mention there is someone in his car, or that he is driving outside of his patrol zone. There is a police policy in place that officers must call in or log both time, mileage, and intended destination at start and end of any trip where they are transporting a female in their car.
Snelgrove agreed at trial that he was both aware of this policy, and aware that it was for the officer’s own protection. He admits he did not follow the policy that night.
The GPS confirms that at 3:18am the cruiser arrived at W’s residence. It left 20 minutes later at 3:38am when Snelgrove responded to a call off Mundy Pond Rd. In those twenty minutes that his car was parked outside W’s residence, W got out of the car and walked out of sight, presumably to go inside. For some reason, Snelgrove does not leave right away even though he is now outside his patrol zone and Comms does not know where he is.
During the ~5 minutes she was away from Snelgrove, she spoke with a friend over the phone. The friend testified that after missed calls back and forth she got through to him at 3:21 am. They spoke for a little under a minute, were disconnected, and then spoke again at 3:23am for almost a minute.
During these calls W’s friend describes her speech as slurred and her sentences as “short and choppy” and said she generally did not sound “like herself.” “You know” he said, “when you talk to someone intoxicated they are not completely coherent.”
He testified that she said she was at a coffeeshop known to him to be very close to her home. She asked him to come get her and told him she did not have her house keys. He told her to just walk home since she was so close and to ask her landlord or her old roommate for keys. He said “she did not seem in a panic.”
The GPS data indicates that Snelgrove’s police car did not move during this time. Though W told her friend she was outside the coffeeshop during one of the calls, during her testimony she could not recall where she was when she called, nor very much of the call itself. Snelgrove says only that she got out of the car and then a few minutes later came back to the window of his car.
There is no way to show where she was for sure or to show whether Snelgrove got back into the car after letting her out of the back seat. According to his testimony, he did not see her for those few minutes and remained in his car. He did not mention seeing her walk away from the residence towards or back from the direction of the coffeeshop.
According to Snelgrove’s testimony, she eventually came back to the car and they talked briefly through the window. According to him, he asks if she would like a ride to a friend’s house or to where she thinks she may have left her keys. They both agree in their testimony that she wanted to be in her own home; it was late.
Snelgrove gets out of his car and they walk around the residence looking for a way in. She does not recall whose idea it was to look for an unlatched window. He never mentions in his testimony whether he, at any point, asked for an ID or made any attempt to verify this was actually her home before breaking in. He tries one window and it won’t open. He tries another and she manages to climb in and down onto her kitchen counter and inside. The next day she cannot remember doing this, but knows she did as she sees her footprints on the counter.
Snelgrove comes in through her front door. He says she opened the door and invited him in to thank him. She says she cannot recall how he came to be in the living room with her, but she did not remember him forcing his way in. He closes the window that she crawled through. This leaves, both the defence and the prosecution agree, about 10 minutes at most – possibly less – for what happens next: oral, vaginal, and anal penetration, and Snelgrove, washing himself up and getting back into his cruiser.
There are Three Elements to a Charge of Sexual Assault
1 – “Assault.” By Snelgrove’s own admission, there was, in legal terms, an assault. Defined as an “application of force,” this can be, according to the Judge’s instructions to the jury, either gentle or violent. Both a hug from your grandmother at the airport, and a sucker punch to your enemy’s tit are, in this legal sense, “assaults.”
2 – The assault must be of a “sexual nature.” Again, by his own admission, the application of force was applied in an undeniably sexual nature. For this there is not only the testimony of both Snelgrove and W but also physical evidence that was collected from the love seat where the assault took place.
3 – The assault must be committed “without consent.” Here is where the case lies. Here is where the headlines flub and the experts come in and the stories diverge. Here is where people get hurt. Here is where memory is most crucial, most painful, and most elusive. Because the factors that may nullify consent, in this case alcohol, can also nullify memory. And memory is evidence.
At this point in the story, it becomes more branching than a binary he-said-she-said. There is a spectrum of intentions from which the jury can choose that ratchets from clear and sober mutual consent down several options to an absence of consent so deafening that one party is actually unconscious, incapable of either speaking or moving. There are unknowable spaces in between.
W was clear that she had no intent to engage in any sexual activity. She had been drinking, was tired, and her goal was to get home and go to sleep. When pressed by the defence, she allowed that her memory was so spotty that she could not swear that she had not verbally consented to sex once in her home. But even so, a “factual” consent is not a legal consent. As the prosecution bluntly explained in closing submissions, “a thirteen year old can agree to have sex, but that is not legal consent.”
As far as W remembers, they were in the living room, she felt too drunk to stand up and went to the love seat. The next thing she can remember, she “comes to” with Officer Snelgrove anally raping her.
She is naked. She does not know how her clothes came off. He finishes. His uniform has remained mostly on. His pants and police belt with gun, radio, handcuffs, and mace still attached, are the only part undone and are pulled down around his ankles. W suffered rashes up and down the inside of her thighs, presumably from the material of his uniform.
He tells her he has missed two calls from Comms which, he admits in his testimony, was a lie. He goes into the bathroom to clean himself up. She does not remember him leaving. W wakes up in her bed with no clothes on the next morning. She does not remember how she got from the living room to her bed.
Legal consent must be given “freely and voluntarily” and all parties must be capable of informed consent. Using the evidence of W’s testimony, the Crown argues that one of two things happened.
1 – W passed out on the love seat and, being physically unconscious, was clearly unable to consent.
2 – She was not unconscious but was so drunk that she was “in no position to understand the risks and consequences” of any actions and therefore was still incapable of consent. Mere drunkenness is not enough to vitiate consent. Even the prosecution admitted that the line “from drunken consent [which is legal]to incapable of consent can be hard to define.”
This is why so much of the trial focused on how much she may have had to drink. The crown pointed out that, unfortunately, there is no forensic or “scientific test” that can determine consent. Without a blood alcohol level at the time of the assault, there is no way to scientifically establish how drunk she was, much less how that affected her internal coherence and capabilities, or her outward appearance.
For her internal coherence there is her testimony. That is evidence. For her outward appearance, in the crucial time window, there is the testimony of the friend she spoke with over the phone, and of the accused, Carl Douglas Snelgrove.
It was established that she had five “coolers” before heading downtown around midnight. Another witness testified that she had at least one shot of tequila upon arriving at Velvet and likely had one more shot and was generally thought to have been “drinking” while chatting in the upstairs lounge of the club.
Other witnesses assumed she was drunk because they all were drunk too, to varying degrees, but none had thought her dangerously so, or had been worried about either her condition at the club, or by the fact that she left at some point on her own.
At least one witness who spent a good chunk of time with her that night testified that she did not remember seeing W have a drink during the time they were dancing. Yes, she was drinking. No, she was not sober. But also no, the slew of witnesses from the bar could not solidly establish her degree of intoxication. But W’s testimony does. She said she left the bar precisely because she was “too drunk.”
Snelgrove’s account is that W invited him in, initiated sexual activity, and then gave verbal consent when he asked for anal sex. Working from that, his defence presents two options as well:
1 – W was actually clear-headed and gave full and free consent.
2 – W may have been drunk, even incapable of consent, but she still appeared capable of consent. Legally, the accused only has to have “honestly believed,” based on “reasonable grounds” that she was capable of consent.
This is where the bizarre and irreconcilable tragedy of sexual assault law comes into this case. It is entirely within the scope of the law, for a person to be incapable of consent, and therefore be a victim of rape, and for the assailant to legally not be guilty of that rape even though they raped. There can be a victim with no legal perpetrator. At least not one that can ever be proven “guilty.”
It is within this netherworld scenario that the testimonies of the complainant and of the accused dovetail. That does not mean this is the truth. It does not mean that this is even the most likely scenario. But it is the most compromising answer to all the facts in evidence.
Compromising in both senses: it takes into account both testimonies; it threatens to expose fundamental flaws in the very structure of rape prosecutions.
Not only is being too drunk to consent a catch-22, as being that drunk will no doubt interfere with memory making the victim’s testimonial evidence weaker than the assailant’s, but feeling “too drunk” is not enough, you must be provably – beyond a reasonable doubt – perceived as being “too drunk.”
That is where the expert’s testimony came in to play in this trial. Dr Mullen, an expert in toxicology, testified to his opinion that it was possible W was drunk to some degree and suffered fragmentary blackouts. This would mean that she was not unconscious and that, given the literature on blackouts presented at trial, it would not be unreasonable to assume that she may possibly have appeared coherent to an observer.
Though, if it was obvious to a friend whom she spoke with on the phone for less than a minute that she was intoxicated, it does not tax common sense to assume it should have been obvious to a police officer with nine years of experience in a hard-drinking city who had specific training and who, by his own testimony on cross examination, agreed he has testified at many trials as to how intoxicated people were. But beyond a reasonable doubt is not a low bar. And there is the evidence of Snelgrove’s testimony which was, as the defence reminded the jury, consistent, clear, and non-argumentative.
This brings me back to something already mentioned above. The crown emphasized the difference between verbal or “factual” consent and legal consent with the example of a thirteen year old child. But that is not a wholly accurate comparison, as the age of a child would not be disputed. And someone who has sex with a child is guilty of rape whether they reasonably believed that child to be of age or not unless they took “all reasonable steps” to ascertain the age. That is a proactive step to ensure consent.
Snelgrove’s defence just had to maintain he was mistaken without being “willfully blind or reckless” to whether she consented and to the need for consent. Here Snelgrove testified to all the things he knows about her, that she told him as they drove home. Conversation that he says convinced him that she was sober, despite the “faint” smell of alcohol he admits he could smell on her breath. Since he maintains he was convinced of her coherence, any verbal consent he says he obtained was argued as legal consent.
“Abusing a position of trust power or authority” to “induce” consent would also vitiate consent. During a voir dire (where the jurors are not present), the crown did argue that he should be able to present this prong of the consent law, given that the accused was an on-duty officer. In the end, the judge found that though Snelgrove was clearly in a position of trust, there was not enough evidence that he used that position to “induce” consent. Meaning, since W could not remember everything that happened, she could not testify to this.
So the jury is left with what? Credibility? The measure of a man, of a woman, of a person, based on their tone while they recall a set of devastating events over the course of an hour in a courtroom is a hard thing to take.
Though each side’s attorney took swipes at the credibility of the other’s client, neither did much damage. Snelgrove’s testimony did reveal a lack of concern for the victim both leading up to, during, and right after the rape even by his own words.
When she got in the car, after she told him she had no way to get home, he still said that he “assumed no responsibility over her” and was no different than “a taxi driver.” He said “I had no concern for her well being.”
He did not use a condom, and he admitted that he did not ask if she used birth control. He testified that he did not ask because he could not have children. He did not say whether it occurred to him or not that her not bringing up protection at all, from either pregnancy or STDs could have been a clue as to the state of her competency. He described orgasming, under direct examination as “we finished,” though the victim did not come.
On the other hand, the victim, the defence pointed out, retained her own attorney, a civil attorney, insinuating that this was a money grab. Though the crown was thorough in their response that a “private citizen exercising [the]sensible and reasonable right” of seeking legal advice is not evidence of lying. The victim’s memory was spotty and she, at times, remembered different things in preliminary statements than she did at trial, but that also corroborates her description of how drunk she was.
Though we cannot know what went on in jury deliberations, this case never rested on credibility, on either side. It was the law; the burden of proof the crown is under to affirmatively prove what one individual thought of another individual’s state of mind.
Tasked with following that law, the jury did their job. And to their credit, they seem to have done it carefully. They requested extra material, like the references cited in the expert’s report, and a dictionary. They were not allowed either.
They also requested, and received, the recorded testimony of both the complainant and the accused and listened to them both in full again. But their instructions from the judge were clear: to find “not guilty” unless they could say, beyond a reasonable doubt, that Snelgrove could not have thought W was capable of consent.
And who can prove what is in another person’s mind? Even if that person’s actions are clear, and cause irreparable harm. That is why, I maintain, I may refer to the complainant as “the victim” even while allowing that Snelgrove was found “not guilty.” A finding of “not guilty” does not make a rape go away.
During the course of the trial, I heard an off-hand remark outside the court room that I think relevant at this juncture, “No one should be raped, but if I don’t want to be robbed, I make sure to lock my door.”
This is not a new comment and some people will see red reading it. But, let’s examine it. Everything about that statement is true. No one should be raped. The speaker was sincere in that. Also, taking control of what you can control to make yourself safe is smart. And here is the thing, we do not even need to go down the road of whether or not it is empowering or damaging to suggest women keep themselves safe instead of using that breath to suggest men shouldn’t perpetrate crimes that make women unsafe. Because, in this case, W did, metaphorically, lock her door.
She recognized she was in a potentially unsafe position, alone, late at night, drunk, and she did what many of us have been taught since childhood to do when we are unsafe; she found a policeman. What further lock on the door do we need? What could be a less assailable choice? So much safer than walking home, or waiting alone in the dark, in the cold, for a ride or even than getting into a taxi.
If you accept Snelgrove’s testimony at every point, what happened is still fundamentally disturbing. His acts while on duty as a police officer cannot help but affect the public’s sense of trust in that institution and their sense of security when dealing with individual officers.
I freely admit that watching this case has shaken me. Snelgrove’s individual actions that night and how the RNC, as an institution, choose to move forward in the wake of those actions, carry heavy consequence that cannot be dismissed with a simple verdict.