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(KIM ANDERSON / iNFOnews.ca)

A Kamloops man convicted for raping his wife has had his conviction overturned and a new trial ordered after the BC Court of Appeal ruled Facebook messages where the two discussed "rape role-play" should be allowed as evidence.

According to a Jan. 31 BC Court of Appeal decision, the two had sent messages discussing a "rape role-play" the day before, but the messages hadn't been allowed to be used as evidence at trial.

The decision said the incident took place in 2019 when the couple, whose names are covered under a publication ban, had separated.

He had gone over to her house with their children one day and they'd had sex.

In 2023, the husband was found guilty of sexual assault after a judge ruled the sex wasn't consensual.

"There was no question that sexual activity occurred between the (husband) and the (wife) at her house on the day in question. There was also no significant dispute about the nature of the sexual activity, or the fact that the (husband) did not take steps to ensure the complainant consented to the activity at the time it occurred," BC Appeal Court Justice Karen Horsman said in the decision.

The issue at trial was whether the husband had "an honest but mistaken belief" in communicated consent.

He argued they had instigated a "rape role-play" scenario, and he believed the sex was part of this role-play, which was why he did not get his wife's consent during the sexual encounter.

His wife denied this, saying there was no role-play and she didn't consent to the sex.

The BC Appeal Court has now ordered a retrial after the panel of judges found the Facebook message sent the day before could be used as evidence.

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The decision said the night before, the wife sent the husband a message which read: "Reblog if you’re into Rape Play."

A chat developed where the two discussed a "rape role-play" which they both agreed they'd be into.

"The main issues, in this case, were consent and honest but mistaken belief in communicated consent, and the messages were relevant to these issues given their content and (close) proximity to the conversation the (husband) alleges happened the following day," the Justice ruled.

Ultimately, the husband's conviction was overturned and a new trial will take place in which the Facebook messages will be admitted as evidence.

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