Content warning: descriptions of sexual violence.
U of T student Samuel Marrello has been found guilty of assault causing bodily harm against a female U of T student, but not guilty of the more serious charge of sexual assault.
Marrello was charged in connection with an incident that took place on the night of April 1, 2017 near UTSG. The verdict of the months-long trial was delivered on September 25.
The complainant, who cannot be named due to a publication ban protecting her identity, alleged that Marrello hit her and sexually assaulted her while she was intermittently blacked out from intoxication and could not consent to sex.
The complainant used ‘blacked out’ to refer to a lack of memory but not necessarily a lack of consciousness.
Justice C. Ann Nelson ruled that Marrello was not guilty of sexual assault because there is a reasonable doubt about whether the complainant did not consent to it.
However, the sexual activity that they engaged in was rough sex that was found to have caused extensive bruising to the complainant, and Nelson found that Marrello “was reckless when he applied physical force towards [the complainant] not caring whether she consented or not.”
The complainant and Marrello had met when they went on a date in 2016 but had not remained in touch afterward. On the night of April 1, 2017, they both separately went to Einstein’s bar near UTSG and happened to meet again. They spent several hours together at the bar, and during that time, they both became intoxicated.
It was after they left the bar and went to the complainant’s apartment that the assault took place.
Charge of sexual assault
A large portion of the trial centred on the fact that, due to her intoxication, the complainant was unable to remember much of the time when the assault and alleged sexual assault occurred.
“I am of the view that [the complainant] tried to be an honest witness,” wrote Nelson. “Her state of intoxication on the night in question, however, interfered with her ability to accurately recall events.”
However, the complainant testified that she did have some flashes of memory, including that she remembered feeling blunt forces on her body, and feeling as if she was being physically manipulated.
The complainant testified that she was “jolted back to her senses” when Marrello allegedly asked if he could take off his condom, to which she claimed to respond: “I can’t consent to this. I am too drunk.” Marrello confirmed that she said this, but said that she had done so suddenly. They both testified that he immediately stopped and left at her request.
In her decision, Nelson wrote that, “While [the complainant] suffered from significant effects of alcohol consumption during her sexual interaction with Mr. Marrello, I am not satisfied beyond a reasonable doubt that she was so intoxicated that she lacked capacity to consent to that activity.”
This was based on, among other things, Marrello’s testimony that the complainant was a conscious and active participant during sexual activity, and it was possible that she consented but could not remember.
However, Nelson added, “A final note: A reasonable doubt as to an absence of consent is not an affirmative finding that [the complainant] consented to sexual activity in the bedroom.”
Charge of assault causing bodily harm
The morning after the assault, the complainant woke up to find extensive bruises on her face, neck, collarbone, inner thighs, and legs.
Nelson questioned whether the complainant’s lack of consent to hitting also meant that she had revoked her consent to sexual activity.
The judge ruled that since it was previously established that the complainant may have consented to sexual activity, finding Marrello guilty of assault causing bodily harm did not mean that he was guilty of sexual assault.
Marrello’s defence on this was his claim that he and the complainant had discussed their preferences for rough sex on the walk to her apartment.
Nelson said that was “implausible” because the complainant had testified that she did not have that preference; only Marrello “admitted that he [had] a preference for rough sex.”
Furthermore, while Marrello did admit to gently slapping the complainant on the face twice, which he claimed to do so at her request, that did not explain why there were bruises elsewhere on her body.
As such, based on, among other things, the complainant’s memory of being hit, her lack of preference for rough sex, and the bruises on her body, Nelson ruled that Marrello was guilty of assault causing bodily harm.
The court will reconvene on October 4 to decide on a date for sentencing.
If you or someone you know has been affected by sexual violence, you can call:
- Assaulted Women’s Helpline at 1-866-863-0511 (Toll Free), 1-866-863-7868 (TTY), and 416-863-0511 (Toronto)
- Support Services for Male Survivors of Sexual Abuse at 1-866-887-0015
- Toronto Rape Crisis Centre: Multicultural Women Against Rape at 416-597-8808
- Good2Talk Student Helpline at 1-866-925-5454
- Gerstein Crisis Centre Crisis Line at 416-929-5200
- U of T Health & Wellness Centre at 416-978-8030.
The Varsity has reached out to the defence and the complainant for comment.
Crown prosecutors declined a request for comment.