Jury to begin deliberations in Yellowknife sexual assault trial on Saturday

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Jesse McNiven, centre left, and Fraser McGurk, centre right, are both accused of sexually assaulting a 17-year-old girl in Yellowknife in June 2015. (Travis Burke/CBC - image credit)
Jesse McNiven, centre left, and Fraser McGurk, centre right, are both accused of sexually assaulting a 17-year-old girl in Yellowknife in June 2015. (Travis Burke/CBC - image credit)

WARNING: This article contains graphic content and may affect those who have experienced sexual violence or know someone affected by it.

The jury in the trial of two men accused of sexually assaulting a teenage girl is set to begin deliberations Saturday.

Jesse McNiven and Fraser McGurk allegedly forced the victim to engage sex while she was extremely intoxicated. The assault allegedly took place in McGurk's Yellowknife home in the early morning hours of June 28, 2015. McNiven was 19 years old at the time and McGurk was 18.

In their closing remarks to the jury, defence lawyers Charles Davison and Jay Bran both reiterated that McGurk and McNiven said they repeatedly received consent from the woman.

Davison told the jury that it was clear the accused told the truth because they were often "open and forthright" with details that "reflect quite poorly" on them. McGurk admitted to making a lewd comment to the women and to suggesting the encounter be put on Snapchat.

"Whatever you think of [McGurk's] conduct you need to leave that at the jury room door," Davison said.

Both defence lawyers said the alleged victim's testimony was unreliable because she had major gaps in her memory and admitted that it was possible she may have given consent while extremely intoxicated.

"It's nothing but bits and pieces … snippets," Davison said of the woman's testimony.

"She wasn't clear if it was consensual or not."

The defence said that even if the woman was intoxicated, it was not proven beyond a reasonable doubt that she was "incapacitated."

Davison argued that "drunken consent is still valid."

Bran said the woman was sober enough that she was able to respond to Snapchat messages inviting her to McGurk's home that morning. He said she was also able to walk the 45 minutes back to her home after the sexual encounter had ended.

Both defence lawyers said their clients had the belief that the woman had given her consent.

'Palpable imbalance of power'

Crown prosecutor Jacqueline Halliburn painted a very different picture of what happened that night.

She said the alleged victim was credible because she was extremely honest about the parts of the encounter she didn't remember. She said the woman was steadfast in her testimony that, on more than one occasion, she told the accused she was uncomfortable, stressed and had said "no".

Halliburn said that regardless of whether or not the woman gave her consent during one of her blackouts, she repeatedly withdrew that consent.

She said while in McGurk's home the alleged victim was "a drunk 17 year-old child, naked, surrounded by a group of men" and that there was a "palpable imbalance of power that was at play".

"She wasn't safe, she was naked, surrounded and vulnerable … just because a victim isn't kicking and screaming doesn't mean she's consenting.

The jury is expected to begin their deliberations Saturday morning.

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