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Daniel Viau, 28, began a trial this week on two counts of sexual assault for an incident at his tattoo studio two years ago.
Neither sister testified to seeing Viau touch the other, despite being present during the hours-long tattooing session. Nor did the younger sister, who Viau tattooed first, warn her sister before she took her turn on the table.
Prosecutor Fraser Genuis said Court of King’s Bench Justice Grant Dunlop should nevertheless convict Viau.
“There is no one proper way for a sexual assault victim to respond,” Genuis said. “Freezing is a legitimate response. Not being able to talk about it is a legitimate response.”
Both women testified Monday during the trial’s single day of evidence, speaking from behind a screen, sometimes in tears.
Viau, who is currently serving a seven-and-a-half-year prison sentence for two separate 2016 sexual assaults, appeared in court wearing a suit and did not speak except to plead not guilty. Defence lawyer Will van Engen did not call evidence.
The younger of the sisters was 16 at the time. She claims Viau, now 28, asked her to remove her shorts before rubbing her genitals underneath her underwear. At first, she thought the alleged touching was accidental or just part of getting a tattoo.
The woman said she eventually realized she was being assaulted. She claimed the touching went on for hours. She said she didn’t say anything because she didn’t want the tattoo to be messed up. By the time she came to believe she was being assaulted, the tattoo was nearly finished, she said, so she stayed quiet.
When the tattoo was finished, the younger woman waited while Viau worked on her older sister. She didn’t tell her sister about the alleged assault because she feared Viau would hear and accuse her of lying.
The older sister described a similar series of events. She said Viau began to touch her genitals, and that she eventually asked to end the session because she could no longer take it. The sisters then left the shop and did not speak about what happened for several days. They reported Viau to police that summer.
Genuis argued that both sisters were credible, reliable witnesses who tried hard to honestly answer questions from Crown and defence. He said their credibility is enhanced by the fact they do not simply claim to have witnessed the alleged assaults — which, if their goal was to get Viau in trouble, would have been the easier story.
He also urged Dunlop not to stray into “rape myths” — prohibited lines of legal reasoning about how sexual assault victims ought to behave. Dunlop asked a number of pointed questions of the Crown, including how the sisters failed to see an assault happening on the tattoo table in front of them, and why the younger sister — during the period when she thought the alleged touching was accidental — didn’t ask Viau to stop.
Van Engen argued the Crown had failed to prove its case. He said it does not make sense that neither sister would fail to notice a lengthy sexual assault, especially if one had just endured similar treatment.
“On the particular facts of this case, there’s something incongruous about the lack of communication between these two sisters,” he said.
Van Engen also dismissed as “unbelievable” the claim his client would be able to focus on his work while repeatedly sexually touching the women with his spare hand.
Dunlop is set to give his decision Wednesday morning.
