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Twin Brother of Woman's Lover Seeks New Trial in 'Mistake Sex' Case

“Oh my God. Oh my God. Oh my God,” she said, grabbing her clothes. “I thought you were your brother.”

Straight out of what looks like a bad criminal law final exam comes this story from the Toronto Star (via Bad Lawyer) about a woman who claims she unwittingly had sex with the twin brother of her "occasional lover." The twin brother was convicted of sexual assault and sentenced to six months in jail for the September 2006 incident, but he is now asking an appellate court to grant him a new trial.

The Star reports that the woman had a sexual relationship with the brother of the accused, and she would stay at his apartment whenever she visited the area. On the night in question, the woman and the accused drove to a liquor store where they each bought a bottle of red wine. The accused twin brother says they became intoxicated and the woman "became flirty." Later, the accused felt sleepy, and his brother recommended he sleep in the bedroom. He saw the woman sleeping in bed, and says he didn't think it would be awkward if they shared the bed. “I thought we were all pretty good friends,” he testified.

Once in bed, he testified, one thing quickly led to another and clothes started coming off. The accused claims he paused things to make sure she knew who he was, and "moved his face into a shaft of light that came from under the bedroom door. He asked, "Are you sure?” and the woman consented through her conduct, the accused's lawyer argues.

The appeal seems to hinge on an alleged case of mutual mistake. The accused's lawyer says he honestly believed the woman knew who he was and he did not try to deceive her. The Crown argues that the woman had every reason to think it was her lover, not his brother, in bed with her, including calling him by the wrong name prior to having sex with him. Under the circumstances, the Crown argues, “nothing short of an acknowledgment of who he was would be sufficient.”

Posted by Bruce Carton on March 8, 2010 at 02:39 PM | Permalink | Comments (6)


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