It was supposed to be a fun Harry Ainlay High School after-grad party.
For a $20 admission, guests celebrated at a Riverbend home on a warm Saturday night in May 2014. More than 100 young people showed up, many getting drunk at the open bar.
Susan, which is not her real name, was 17 years old at the time. She lied about going to the party, telling her mother that she was staying overnight with a girlfriend for a pajama party.
Instead, she and her friend took public transit and arrived at the party around midnight.
Less than three hours later, Susan was found lying on the ground in the large back yard, unconscious or in a deep sleep, with her underwear at her ankles.
When she was carried inside the house and attempts were made to revive her, she said she heard people laughing and saying, “Oh f***. She’s been raped. Oh James.”
James Chen is accused of sexually assaulting Susan. He admits they were intimate that night, but insists it was consensual.
While the couple was intimate in the back yard, they were surrounded by 15 to 20 people.
Some took pictures, while one shot a short video, which later became evidence at the trial.
“I didn’t want to miss out on anything,” he said. “That’s pretty much why I took the video.”
First experience with alcohol
On the witness stand, Susan said that night was the first time she’d ever consumed alcohol. In less than an hour, she testified she downed between three and six shots of hard liquor, plus some sips of beer and champagne.
“Because it was my first time consuming alcohol, my body didn’t react very well to it,” she said. “I started feeling dizzy. I started feeling sick.”
It was in this backyard that the after-grad party took place. (Edmonton Police Service)
Susan said she decided to get some fresh air in the backyard, hoping to clear her head. That’s when she was approached by Chen, who introduced himself to her as ‘James the Bartender’. She’d never met him before that night.
Things quickly became sexual.
“I do remember kissing James,” she said “I remember his lips.”
Chen testified in his own defence at the two-day trial.
The 22-year old fourth-year University of Alberta engineering student said he’d had a few drinks over the course of that evening, but insisted he was not intoxicated.
He doesn’t think Susan was either. Chen said Susan began to run her hands over his body.
‘Things got more heated up’
“Things got more heated up, so we decided to go behind the trees for privacy,” he testified.
He said Susan didn’t have any trouble walking and she did not object to going behind the trees.
She remembers it differently.
“I was just walking where I was guided,” she said. “He was dragging me towards the trees. It didn’t look like he was forcing me to do anything because of my state.”
Susan testified that once they were behind the trees, Chen reached under her clothes.
“When I started feeling his hands in places where I don’t feel comfortable, I started saying no,” she said. “I tried to stop him. I said no.
“The last time I remember I was under him. He was on top of me. His hands were under my dress.
‘I kept saying no’
“I kept saying no until I lost my consciousness,” she testified.
Chen testified Susan asked if he had a condom and he pulled one out of his wallet.
But he admitted he was physically unable to have sexual intercourse and blamed it on the drinks he’d consumed that night.
He dropped the unused condom onto the ground. Forensic testing later revealed both Chen’s and Susan’s DNA was found on the condom.
Chen said two or three minutes after dropping the condom some people showed up and were trying to take pictures of them.
“I didn’t understand why people were trying to take pictures or film it,” he said. “It was a private thing. I told them to leave and some people were laughing.”
A photo was entered as an exhibit, showing Susan lying on the ground with her eyes closed and Chen kneeling over her, with his back to the camera.
“Then after people left, we were both kind of embarrassed because it was outside. It was at a party. Within a couple of minutes my friend said we have to go if you want a ride home,” he testified.
“I pulled my pants up. I said I’m going to leave. I left her because she said it was okay.”
Chen left Susan in the backyard, behind the trees, naked from the waist down. Susan said she has no memory of him leaving.
Crown prosecutor Neil Wiberg grilled Chen during cross examination.
“You had sex with her when she was unconscious,” Wiberg said. “You took advantage of her when she said no and had sexual intercourse with her when she could not resist.”
“I never used the condom,” Chen answered. “She was not drunk. She never said no once.”
Social media rumours
The next day, Susan became aware of rumours swirling on social media and talk of photos that had been taken.
She contacted the young man who had shot the video, concerned he might release it on social media. Instead it was later turned over to police.
But beyond what was on social media, Susan said she was most worried about what happened to her.
“I was raped at the party. I wasn’t thinking about people. I was thinking about myself.”
She began to research sexual assault and intoxication. The following day she went to hospital for testing with the Sexual Assault Response Team. They called in the police.
Susan testified she did not want to have sex with Chen that night.
“Not with him. Not with anybody,” she said.
Defence lawyer Brian Beresh suggested Susan was experiencing what he called “lover’s regret,” and providing a “self-serving story” that her parents and classmates would accept.
He called Chen “a young man without any criminal record,” whose evidence was “clear, concise and frank. Not self-serving.”
By contrast, he said Susan’s evidence “left much to be desired. It appeared that she attempted to paint herself in the best possible light.”
The prosecutor asked Justice Peter Michalyshyn to reject Chen’s evidence and find him guilty of sexual assault.
“She said no. She testified she said no three to four times. The law’s clear,” Wiberg said. “Once she says no, that’s the end of it. He has to stop.”
Michalyshyn has reserved his decision.