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KAMLOOPS - A man has avoided jail time for sexually assaulting his wife just one month after she had a caesarean section.

But a provincial court judge in Kamloops ensured he would have a conviction on his record and register as a sex offender for at least 10 years, after he showed a lack of empathy and insight into his offence.

The man is only identified as N.L. and the woman as D.L. in Kamloops Provincial Court Judge Stella Frame's written decision in order to protect the victim's identity.

On Dec. 19, 2016 D.L. was resting on her bed with her newborn baby sleeping nearby, one month after a caesarean section delivery. She had been warned not to have sex.

N.L. imposed himself on D.L., Frame said in her decision. She protested and told him to stop, but he persisted, saying he would take what was his. He didn't stop until D.L. hit him.

She didn't report the assault to police until N.L.'s psychiatrist called her at a later point to tell her that N.L. had been having homicidal thoughts that included D.L. and their son.

The couple split up after the incident and D.L. is in a different relationship.

Frame said N.L. has a history of mental illness and suicidal ideation, but Crown opted for a conditional sentence order because of a deadly genetic disease he has, Adrenoleukodystrophy. Defence lawyer Michelle Stanford asked for a conditional discharge for her client.

Frame said Crown acknowledged that the sexual assault is on the lower end of the range, but prosecutor Alex Janse argued that the domestic nature of the assault, the post-surgery condition of the complainant, and N.L.'s "antiquated" attitude toward his proprietorial rights over his wife were all aggravating factors.

According to the decision, the author of a pre-sentence report for N.L. observed no victim empathy from him. He told the author that D.L. had a boyfriend and moved on as though he didn't exist. He felt like he didn't do anything forcible and she just wanted to end the relationship.

"It is an astonishing lack of insight. His wife was compelled to strike him to fend off his attack," Frame said. "She was in a vulnerable physical state. He then expressed homicidal thoughts toward her and their new born child. He sees how the matters before the court have drastically changed his life, and not how they must have impacted D.L."

N.L.'s explanation was he was advancing his wife in an "amorous" way, according to the decision. He didn't retaliate when she punched him, and he has no explanation for his insistence on taking what was his.

Counsel argued that D.L. didn't report the assault to police for 19 days and in that time had been texting N.L., hugging him and going for lunch, claiming these actions did not show fear or substantiate the impact of the offence claimed by the victim.

"We are well past the point of condemning complainants for waiting to report sexual assault offences, especially by a spouse," Frame said.

Stanford said it was difficult for N.L. to be empathetic toward D.L. because he had been depressed and stressed while adjusting to his diagnosis of the terminal illness. Frame said that does not, on any level, excuse his conduct toward her or his "complete lack of insight" for the impact his actions had on her.

A letter from N.L.'s counsellor was filed in court, saying N.L. believed D.L. felt threatened by their counselling relationship, and disapproved of him establishing friendships with both men and woman. Frame points out this is one-sided and reported by N.L. and it appears the counsellor never engaged with D.L.

The counsellor also described a secondhand report of an incident where D.L. spoke harshly to N.L. in a public setting.

"This is nothing less than victim blaming," Frame said. "It is an appalling form of support for conduct that cannot be excused, no matter what one-sided views (the counsellor) may have formed of D.L."

A letter from N.L.'s aunt and uncle describe a well-mannered and kind-heartered person who suffers through mental health struggles.

"While this assists in visualizing (N.L.) as it relates to his character in the community, it does not assist in addressing sentencing for an offence that so often happens behind closed doors - as in this case," Frame said.

His father also filed a letter, describing N.L.'s disease, the pain he experiences now and will in the future, and the emotional impact the disease and this charge have taken on him.

Frame said what is most "telling and disturbing" is his father's comment that N.L. is unable to come to terms with his wife "abandoning him" and having his disease confirmed. He described the loss N.L. has had because he's been unable to hold his infant son before his disease progresses to the point where he physically can't.

"All (his) life he has always shown to be a well mannered, caring and considerate person. (N.L.) is not the type of person ever to hurt women, or anyone. He loved his wife and tried to do everything he could for her," his father stated.

His father continued to say the charge on top of everything else is almost unbearable.

"This may be so, but it is also devoid of insight into D.L.’s experience or of empathy toward her," Frame said. "In fact, nowhere in this letter is there any acknowledgment of (N.L.)’s wrongdoing or the considerable impact it has had on D.L."

Frame slammed the attitude of N.L. and his supporters. While some references acknowledged the charge he faced, none of them reflected any empathy or insight into the pain the offence caused the victim. Frame said what was more troubling was they didn't reveal any insight into N.L.'s part.

"Two of the references cast blameworthiness on the victim. That the focus of (N.L.)’s concerns seem to be on D.L.’s desertion of (him) at a time that he has been diagnosed with a critical illness fails to reflect the reality of D.L.’s circumstances: she was sexually assaulted by her husband who then threatened her life and that of her newborn child," Frame said.

Frame said that while N.L. expressed remorse to the court, it's not reflected in the pre-sentence report or support letters. She said his entire focus was his bitterness over D.L. leaving him for another man and the impact it's had on him.

"The message must be sent that partners are not property," Frame said. "When a partner says no, the answer is absolutely no. No partner should be required or expected to remain with someone who is sexually abusive toward them. That N.L. and some of his supporters are so dismissive of this offence cries out for sterner denunciation."

N.L. was placed on a six-month conditional sentence order which includes a curfew, a no-contact order with D.L. and not possess any drugs or alcohol. The sentence will be followed by 12 months of probation.

Frame said N.L. is very ill and does not pose a danger to society, but the lack of empathy for D.L. and the focus on his own suffering preclude consideration of a conditional discharge.

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