Calgary Courts Warn Women Not to Drink

The message is loud and clear: don't drink or you can be raped without consequence.

And, it makes no difference if you're a 14-year-old girl who is assaulted by an adult male.

Drunk teen sex ruled no crime: Judge says evidence insufficient to prove girl involved didn't consent

By KEVIN MARTIN, SUN MEDIA

Having sex with a drunken 14-year-old he had plied with alcohol was not a criminal offence by former Calgary man, a judge ruled yesterday.

Justice Peter McIntyre said there was insufficient evidence the girl didn't consent to having sex with Trevor Byron Niebergall.

But McIntyre did find Niebergall guilty of sexual assault for placing his genitals on the girl's face after she passed out -- an act the offender captured on his cellphone camera and showed to co-workers.

McIntyre said the fact the teenage complainant didn't remember her sexual encounter with Niebergall at a December 2005 New Year's Eve party did not mean she hadn't consented.

He noted one witness said she appeared to have the capacity to consent when she and Niebergall went to a washroom in his brother's apartment, where they had sex. And the Queen's Bench judge said the girl willingly consumed large amounts of alcohol supplied by Niebergall even after he made lewd sexual comments.

She said on three occasions the accused said he would drink with her if she performed a sexual act on him.

"The accused's lewd comments towards her did not compel her to leave," the judge said. "The complainant was not forced to consume alcohol -- she drank ... beer willingly and then switched to alcohol. It is not at all clear why she drank so heavily."

Niebergall, then 19, showed photographs of the teen, naked and passed out, to co-workers the following day, bragging he had had sex with her six times.

But in his testimony he said they only had sex twice, one in the bathroom and later when other partygoers had left and both times with her consent.

McIntyre said because the girl drank so heavily and had little recollection of events at the party, he could not accept her claim she didn't agree to have sex.

"Her evidence was not reliable after she started drinking," he said.

Crown prosecutor Susan Kennedy said a 45- to 60-day jail term is warranted for the incident which occurred after the teen passed out.

Defence lawyer Pat Flynn has requested a pre-sentence report before making his full submissions. The case returns to court on Oct. 14.

Two months in jail? Did the judge, Peter McIntyre, not think to ask why the rapist was buying drinks for a minor in the first place?

Can women and children in Calgary not expect protection from sexual violence?

Maybe, Trevor Niebergall would like to have drinks on me.

UPDATE: Please read Matttbastard's excellent follow-up - "How To Get Away With Rape in Canada" - at Shakesville.

Comments

[Richard Evans]

uummm... This took place back in 2005. If memory serves, the age of consent wasn't raised from 14 to 16 until the spring of 2008. Back then it was completely legal for this pig to have sex with that little girl after getting her drunk.

For that, you have to blame the Liberals and Dippers because it was their opposition to a raise in the age of consent that had things held up for so long. Had the issue been addressed by the other parties, back in 1999, when it was brought up by Reform Party MP's, the subject of your post could have been charged and convicted with statutory rape instead of walking away with a simple slap on the wrist...

Blame the pig, yes, but save a little blame as well, for the left half of the political spectrum who thought that it was "OK" for the age of consent to remain at 14. Because of them, the pig was able to do what he did legally.

Link re 1999/Reform MP's:
http://www.google.ca/search?q=%22Reform+MP%22+%22age+of+consent%22&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a

[deBeauxOs]

Trevor Niebergall is vermin.

You have to wonder how many other times he has used alcohol to rape women. His picture should be on the internet, as a warning. Hopefully someone will post it.

[janfromthebruce]

This isn't actually about age of consent, but about the CAPACITY TO CONSENT.
I believe this will be appealed to a higher court, hopefully.

[matttbastard]

uummm... This took place back in 2005. If memory serves, the age of consent wasn't raised from 14 to 16 until the spring of 2008. Back then it was completely legal for this pig to have sex with that little girl after getting her drunk.

1. Not 'have sex with'. Raped. Full stop.

2. Not statutory rape. Rape.

Full stop.

The fact that she was stinking, steaming drunk means she wasn't in any condition to knowingly consent to anything.

3. Since when is it legal to knowingly serve alcohol to someone under age (which was what I believe Polly's point was re: "why was he buying drinks for a minor in the first place")? Strawman arguments wrapped in Reform green about teh EVUL GRITS AND NDP (AGE OF CONSENT!!!1 SQUAWK!!1) are an unnecessary distraction from the one pertinent issue: a 14 year old was raped and this fucking asshole fucking got away with it.

This decision, complete with 'why didn't she X' victim blaming, is a fucking disgrace. Justice Peter McIntyre has serious head-up-ass issues with regards to women and the law. He has no fucking business being on the goddamn bench.

[Lilo]

I'm asking as an American--is there a way to recall judges? And is McIntyre elected?

Goddamn, that poor girl got violated *twice*.

[Lilo]

I'm asking as an American--is there a way to recall judges? And is McIntyre elected?

Goddamn, that poor girl got violated *twice*.

[deBeauxOs]

There have been instances in Canada where judges have been removed from the bench; those individuals had a history of making legally questionable judgements and inappropriate comments about witnesses testifying before them.

Here's one notorious example:

http://www.fact.on.ca/newpaper/np990302.htm

[Polly Jones]

I echo people's thoughts and sentiments, minus RE as usual.

I am quite unwell so that is why I have not been responding to comments.

I could rage on about the judge's comments for hours. Many of us are used to sexual solicitation by men from the age of 12. Most women could not go out for the evening if lewd sexual remarks were a warning that we will be raped and this warning will make it OK!

Anyway, look for matttbastard's post on Shakesville...which will hopefully get linked back here.

[Graham]

Blame the pig, yes, but save a little blame as well, for the left half of the political spectrum who thought that it was "OK" for the age of consent to remain at 14. Because of them, the pig was able to do what he did legally.

Legal, my arse. What part of the word RAPE don't you understand? He didn't have sex with her, he raped her. The fact that you try to score cheap political points from this tragedy is beyond belief.

[Pete Moss]

You'll have to excuse Richard Evans; he is our resident village idiot here on this blog who routinely reduces everything to black & white, left & right. The left, he counsels us, is to blame for all the world's problems, including rape. He can be safetly ignored.

[Richard Evans]

Legal, my arse. What part of the word RAPE don't you understand?

The last time I checked, consent was a factor. As the Judge noted, there was insufficient evidence to show that the girl 'didn't' consent.

In North American legal systems, the burden of proof is on the prosecution and those accused are innocent until proven guilty.

You can call it rape if you want (I'm inclined to agree) but without adequate proof, the Judge in this case cannot.

The fact that you try to score cheap political points from this tragedy is beyond belief.

Fact: The pig was legally allowed to have consensual sex with that 14 year old child at that time.

Fact: The Liberals and NDP fought tooth and nail to keep it that way.

Fact: Had the age of consent been raised prior to this event, it would have been illegal for the pig to touch the 14 year old girl, consensual or not.

None of the above facts can be argued. Your elected politicians were directly responsible for allowing/maintaining the environment where the pig could do what he did and get away with it.

The fact that you're downplaying the facts in order to shield your elected representatives from criticism shows fundamental intellectual dishonesty.

You folks can moan and wail all you'd like but you have to remember who you voted for. You need to look in the mirror while you're assessing blame.

[Richard Evans]

This isn't actually about age of consent, but about the CAPACITY TO CONSENT.

Comparable to a situation where a date-rape drug is used. I can understand that. The Judge took that into account as well:

McIntyre said the fact the teenage complainant didn't remember her sexual encounter with Niebergall at a December 2005 New Year's Eve party did not mean she hadn't consented.

He noted one witness said she appeared to have the capacity to consent when she and Niebergall went to a washroom in his brother's apartment, where they had sex....

You'll note that the girl wasn't passed-out at the time.

...And the Queen's Bench judge said the girl willingly consumed large amounts of alcohol supplied by Niebergall even after he made lewd sexual comments.

She said on three occasions the accused said he would drink with her if she performed a sexual act on him.

"The accused's lewd comments towards her did not compel her to leave," the judge said. "The complainant was not forced to consume alcohol -- she drank ... beer willingly and then switched to alcohol. It is not at all clear why she drank so heavily."

Don't get me wrong folks, I'm not defending the pig. My daughter turns 14 this year and the idea that something like this could happen to her scares the hell out of me.

What I am saying is that the Judge had to make his ruling based on the evidence before him and based on the laws enacted at the time the event took place. Had the age of consent been raised prior to 2005, This guy would have been charged with statutory rape right off the bat. No questions regarding consent need be asked.

[Polly Jones]

Would you be OK with this happening to your daughter when she was 16? This is not a matter of consent.

Seriously, Richard, enough. OK, enough.

If you want to make this a partisan issue, write on your blog.

For now, our hearts go out to this girl and her family.

[Pete Moss]

R.E. "You'll note that the girl wasn't passed-out at the time."

False. 'Niebergall, then 19, showed photographs of the teen, naked and passed out, to co-workers the following day, bragging he had had sex with her six times.'
'But McIntyre did find Niebergall guilty of sexual assault for placing his genitals on the girl's face after she passed out '

Niebergall had sex with this female adolescent at least twice with her knowledge (however vague), and sexually violated her at least once without her knowledge (and if Niebergall's bragging has any merit, more than once), and thus, without her consent. The fact the 14 year old was violated/assaulted while passed out naturally leads people to speculate about actual rape.

R.E."Because of them [the left half of the political spectrum], the pig was able to do what he did legally.

False. The 'pig' did not do what he did 'legally'. He was found guilty of sexual assault.

R.E. "Fact: The Liberals and NDP fought tooth and nail to keep it that way."

False. The bill (Bill C-2) was part of an omnibus crime bill that passed third reading almost unanimously. The recorded divisions in the house of commons were: yeas 221; nays 1. Bill C-2 was actually derived from an earlier similar bill (Bill C-22) introduced in 2006 by the Liberal Party which died as the Liberals fell from office in that year's election.

R.E. "Your elected politicians were directly responsible for allowing/maintaining the environment where the pig could do what he did and get away with it."

Absurd. This was a private encounter between persons. What happened to the far right's mantra of 'personal responsibility'? R.E. wants to blame politicians for the sexual assault of a 14 year old. Dispicable. This kind of thing happens everywhere, even in places where 16 is the age of consent. The law has nothing to do with 'allowing' sexual assault to happen. It's a specious argument.

The person responsible for assaulting her has been found guilty and is awaiting sentencing. He did not, therefore, 'get way with it'. The crown has recommended two months. We'll see what happens.

R.E. "The fact that you're downplaying the facts in order to shield your elected representatives from criticism shows fundamental intellectual dishonesty."

Nobody is downplaying the facts; if anything, people are getting worked up over the facts (i.e. the sexual violations, the light sentence recommended, etc.). And where has anyone tried to shield elected representatives from criticism? No one mentioned nor cares about elected representatives. It was soley R.E. who brought up politics in the first place. It's irrelevant to this case, because it's about sexual assault and the capacity to consent, no matter what age.

Richard Evans needs to put down his crack pipe, learn reading comprehension skills and go back to his own partisan political blog where everything is black and white, left and right, and where he can seek solace from the confusing subtleties and nuances of real thought.

[Chloe]

This one goes Out to Richard evans

Quote:
You have to wonder how many other times he has used alcohol to rape women. His picture should be on the internet, as a warning. Hopefully someone will post it.

Niebergal Never Raped this Girl, He was found on sexual Assault, Nor should his picture be put on the internt he is NOT a Sexual Predator or A Severe Sexual Offender!

I'm not condoning what he did n the actions he took afterwards by going to work & showing co-workers!& or the fact of the pictures that he had taken or any other actions on his part But Rape WAS NOT one of them.

[DC]

I might amusingly note that it was actually a Conservative government (remember Brian Mulroney? Yes, that guy) that lowered the overall age of consent to 14 (it used to be 16 for girls but not guys, so it was considered discriminatory).

[Anonymous]

Awesome.

[JB]

Consent, or no consent, the legal system is flawed towards allowing rape.

You will notice that the girl's testimony was no longer legitimate or reliable as evidence because she had been consuming alcohol. However, the man's testmony that she had concented to have sex with him (legal age or not) was never questioned or deemed unreliable due to the fact that he was also consuming alcohol? Just goes to show how biased Canadian court system actually is against women!