No push meant consent, man testifies

'A girl who didn't want it would push you away and say 'no.' She didn't say anything at all'

Kamloops Daily News
November 21, 2012 01:00 AM

Kamloops Law Courts

A man accused of sexually assaulting a young woman at a Shuswap apartment complex told police he assumed she consented to sex in her apartment after a party two years ago.

Kenneth Tomma is on trial for sexual assault and break and enter with intent.

A videotape of Tomma's statement to police was played Wednesday in B.C. Supreme Court in front of a 12-person jury.

Tomma told an RCMP member he left his own apartment in the early morning hours of Oct. 23, 2010, to bum a cigarette from one of the teenagers who worked at a Shuswap resort. The middle-aged man drank earlier with the group at a going-away party for several of them.

Some time after the party was over and residents were sleeping, Tomma said he knocked on his neighbours' doors. If they didn't respond, he tried their doors. All were locked, except the apartment of an 18-year-old woman who moved into her own place the night before.

Her name is protected under Canadian law.

"I was just looking for a smoke," Tomma told Const. Mark Richardson in recorded statement to police. "She didn't seem to answer. I lied down with her."

The woman testified Tuesday she went to bed between midnight and 1 a.m. after drinking a bottle of wine at the party. She said she awoke several times in a confused state when she realized a "mass" was on top of her. She eventually stopped the act and told her friends next door she was sexually assaulted.

Tomma said the woman gave no indication to him she did not want to engage in sex.

"A girl who didn't want it would push you away and say 'no.' She didn't say anything at all."

Tomma said after several minutes of sexual intercourse she suddenly stopped him and went to the bathroom, shutting the door behind her. Tomma said he thought he accidentally hurt her.

"She was lying with me and didn't seem to mind. Then she got upset and went to the bathroom."

Earlier Wednesday, one of the woman's friends testified Tomma had told him a few days before the incident that he liked her.

"He said he had an interest in (her) but he was way too old for her," said the woman's young friend.

"He said she was a nice-looking lady and he wanted to get to know her. I didn't agree with that at all."

At the beginning of his statement to police Tomma repeatedly said, "I screwed up, I screwed up. I got too drunk."

The jury trial continues this week.

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