Chipman man found guilty of sexual assault
Brayden Paczay, 23, touched a woman sexually, had intercourse with her when she didn’t consent two years ago, and took no reasonable steps to ask, a judge ruled
Warning: This story features graphic descriptions of sexual assault.
When Brayden Paczay slipped into a friend’s bedroom two years ago and “just assumed” she was into having sex, he crossed a line and violated the young woman’s sexual integrity, a judge ruled Tuesday.
Paczay, 23, of Red Bank Drive in Chipman, stood trial earlier this year in Fredericton provincial court on an indictable count of sexual assault.
The charge stemmed from events at the victim’s family home in the capital region on July 28, 2021.
There’s a court-ordered publication ban in place protecting the victim’s identity, so the Fredericton Independent isn’t specifying exactly where it occurred.
Judge Lucie Mathurin rendered her decision on the case Tuesday, finding Paczay guilty as charged.
In doing so, she reviewed the evidence she heard at trial, most of which came from the victim and the defendant.
The judge noted that on the day in question, the victim finished a day at work and returned home. Paczay was there as well, as he was a friend of the family.
The victim relaxed on the couch in the living room for a bit, Mathurin said, but eventually went downstairs to her bedroom, where she spent some time on her phone on Snapchat.
Paczay stayed for supper at the home, court heard, and during this time, he and the victim were exchanging messages on Snapchat as well.
‘She just froze’
The victim was clad in a hoodie and sweatpants, the judge said, and was covered by a blanket.
“She testified she heard someone coming downstairs,” Mathurin said, noting it was Paczay.
He entered the room and took the blanket off of her.
“She recalls his hands down her pants, and she said she had to work in the morning,” the judge said.
At one point, the victim told court, Paczay said something to the effect of “C’mon, you like it.”
“She kept saying she had to work” and that “it wasn’t a good idea,” the judge said.
That’s when Paczay penetrated her vagina with his fingers.
“She just froze,” Mathurin said, describing the victim’s testimony about how she reacted to the penetration.
From that point on, she said, the victim went silent and essentially immobile as she lay on her back.
The victim reported Paczay removed her sweatpants and then took off pants, and he got on top of her and sexually assaulted her further.
“He put his penis in her vagina,” Mathurin said.
The woman didn’t recall how long the incident lasted, but she did remember that during the assault, she received a text on her phone, and it was her mother wondering where Paczay was.
Paczay left her room soon after it was over and said little, court heard.
“She said he put his pants back on and left the room quickly,” the judge said.
On cross-examination, the woman admitted there may have been some kissing at first and that she had touched Paczay’s penis, but that he had forced her to do so.
She conceded in her testimony she never called out for family members who were in the home as well.
When defence lawyer Robert Digdon questioned her on the witness stand, he had suggested she helped Paczay in removing her pants.
“She denied that she was assisting it,” Mathurin said.
‘He said he just assumed’
Paczay testified in his own defence, and he said when he removed her pants, she lifted her buttocks to allow him to do so.
He noted she said nothing as he slid his hand into her pants.
“He thought she was participating the whole time, in his eyes,” the judge said.
When he was asked during his testimony how he knew she wanted to have sex, she noted, “He said he just assumed.”
The victim never said no, the defendant testified, but she never said yes either.
Mathurin said the case comes down to consent, and in determining if there was or wasn’t consent, to the credibility of the witnesses.
She said she found the victim to be credible and reliable.
“She was not evasive or defensive during cross-examination. She was upset,” the judge said, noting that’s common.
Paczay, conversely, was sometimes vague during his answers, and he was clear he had just assumed she was OK with the sexual contact.
“He stated that she lifted her butt a little [when he removed her pants] and opened her legs [when he got on top of her],” Mathurin said.
The defence had argued that even if the court finds the woman didn’t consent to the sex, Paczay had an honest but mistaken belief that she had.
But the judge said there was no evidence, even from the accused, that the victim welcomed the sexual encounter.
Even if the court were to accept the woman lifted her butt or opened her legs, she said, those are ambiguous acts that don’t convey consent.
Binding precedents note that such ambiguous acts aren’t enough to bear out defences of honest but mistaken belief, Mathurin said, and they also note that defendants have to show they took some reasonable steps to determine if there’s consent.
But Paczay himself told the court he was just assuming, she said.
“He said he never thought about it at the time. Now he thinks about it, that she never said anything,” the judge said.
But Mathurin, in finding the victim credible and reliable, accepted her version of events.
“She said a number of times she had to work in the morning and she froze,” the judge said.
She also noted that even if one accepts there could have been consent or a mistaken belief of consent for the sexual touching, that doesn’t mean it would extend to the intercourse.
Mathurin scheduled Paczay’s sentencing hearing for Sept. 12, and she ordered the preparation of a pre-sentence report and victim-impact statement for consideration at that time.
Don MacPherson can be contacted at ftonindependent@gmail.com.