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Lawyers for players linked to alleged sexual assault to give NHL videos, text messages

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Content Warning: The following article contains references to sexual assault.

As the National Hockey League pursues its investigation into an alleged 2018 sexual assault involving eight former Canadian Hockey League players, lawyers for the players plan to turn over to the league two videos filmed with a cellphone during and after the incident, as well as 35 text messages sent between the alleged victim and one of the players, a source told TSN.

The videos and text messages were provided to London Police Services detectives by lawyers representing seven former CHL players in the days after the alleged June 19, 2018, assault in a London, Ont., hotel following a Hockey Canada event. London police closed its investigation on Feb. 6, 2019, without laying criminal charges. A police spokeswoman declined to say on Monday what role, if any, the videos played in the decision to not charge the players.

Investigators with Henein Hutchison, a Toronto law firm hired by Hockey Canada to scrutinize the allegations, have reviewed the videos and text messages but do not have copies of them, lawyers for the players said.

Hockey Canada has reopened its investigation into the incident and the alleged victim has said through her lawyer she will cooperate with the organization’s investigation. It’s unclear whether Henein Hutchison will continue to play a role in the renewed probe and whether the videos will be provided again to anyone working for Hockey Canada.

While there are eight former CHL players listed as “John Doe” defendants in the case, lawyers who represent seven players say they are unaware of why eight players were named as defendants. Both lawyers for the alleged victim and seven former CHL players declined to comment on the videos and text messages.

The first video is six seconds and was filmed at 3:25 a.m. during the incident, Kaleigh Davidson, a lawyer working for the players, said in an interview with TSN on Sunday. 

The exchange is as follows:

“You’re okay with this?” an unidentified man asks the woman, who is shown from her neck up in the video.

“I’m okay with this,” she responds.

The second video is 12 seconds and was filmed at 4:26 a.m., after the incident, Davidson said. The woman stands with a towel covering her chest. 

“Are you recording me?” the woman said on the video. “Okay, good. It was all consensual. You are so paranoid. Holy. I enjoyed it. It was fine. It was all consensual. I am so sober, that’s why I can’t do this right now.”

TSN has not been able to independently confirm the timing of the videos, which have no visible time stamp.

In her statement of claim, filed in April 2022, the plaintiff alleged that following the assaults, the players directed her to say she was sober while she was being video recorded.

According to text messages provided by Davidson, the woman and one of the hockey players exchanged text messages on June 20, 2018.

“Did u go to the police after Sunday?” the player wrote at 11:26 a.m.

“I talked to my mom about it and she called I think but I told her not to. I don’t want anything bad to come of it so I told her to stop,” the woman wrote at 11:53 a.m.

“You said you were having fun??” the player wrote at 11:55 a.m.

“I was really drunk, didn’t feel good about it at all after. But I’m not trying to get anyone in trouble, I know I was in the wrong too,” the woman wrote at 11:58 a.m.

“I was ok with going home with you, it was everyone else afterwards that I wasn’t expecting. I just felt like I was being made fun of and taken advantage of,” the woman wrote at 12:04 p.m.

“I understand that you are embarrassed about what happened. But you need to talk to your mother right now and straighten things out with the police before this goes to [sic] far. This is a serious matter that she is mis [sic] representing and could have significant implications for a lot of people including you,” the player wrote at 12:06 p.m.

“What can you do to make this go away?” he wrote at 12:06 p.m.

“Ya I understand that, I’m not trying to push this any farther,” she responded at 12:07 p.m. 

“I’m sorry for any trouble it might have already caused,” she wrote at 12:07 p.m.

“Ok so can you please figure out how to make this go away and contact the police,” the player wrote at 12:09 p.m.

After several messages asking if she had gone to police, the player texted again at 2:14 p.m.: “I appreciate that your [sic] going to put an end to this I know this must not be easy for you to have to call the police and say this was a mistake. have you thought about what you are going to say to them?”

“Told them I’m not going to pursue it any father and that it was a mistake. You should be good now so hopefully nothing more comes of it. Sorry again,” the woman wrote at 7:14 p.m.

“I appreciate you telling the truth. Thank you all the best,” the player wrote in his final text message at 7:40 p.m.

The NHL is scheduled to begin interviewing players in coming days and the videos and text messages will be used by the players’ attorneys to argue that any sexual contact between the players and the woman was consensual, said a source familiar with the matter.

Standard player contracts in the NHL contain morals clauses that give the league the ability to discipline players for conduct on or off the ice that is deemed detrimental to their team, the NHL, or the game in general. Players can be disciplined without a criminal conviction.

NHL chief of security Jared Maples, the former director of the New Jersey Office of Homeland Security and Preparedness who joined the league in 2021, is running the NHL’s investigation, Katie Strang of The Athletic reported on July 11.

So-called “consent videos” are becoming more common in cases of sexual assault as people filming their sexual encounters become more prevalent, experts in sexual violence laws say.

“Defence counsel in cases must do what defence counsel do, and if a person on video says they consent, counsel will argue that makes their case,” said Blair Crew, director of Queen’s University’s legal aid program and an advisor to the Ontario government’s Independent Legal Advice for Survivors of Sexual Assault Program.

“A six-second or 20-second video just is not enough to provide the context for what’s happened. You almost need to have a full, complete video showing the entire encounter and all of the context around it. Someone could consent to something in the first few minutes when the encounter really is consensual. But that doesn’t mean that they have consented to what might happen after.

“Consent videos are becoming more common because people in general are becoming more comfortable about filming their own sexual encounters.”

The woman who accused the former CHL players of assault has alleged she was heavily intoxicated before she returned to a player’s hotel room and engaged in consensual sex. She alleged that seven other players then entered the room, and she was assaulted for hours before being pressured to shower and film a video saying she was sober.

Dr. Lise Gotell, a women’s study professor at the University of Alberta and an expert on sexual assault law, said that the Supreme Court of Canada has not offered a clear opinion on whether someone who is heavily intoxicated can provide consent. While someone who is “blackout” drunk cannot consent, it’s not clear how drunk someone has to become to be incapacitated and unable to provide consent, Dr. Gotell said in an interview on Monday. 

“Consent has to be ongoing and active and to applicable to each and every sexual act,” Dr. Gotell said. “Even after consent is given, it can be retracted at any time, which means that a small video – whether it is six or 20 seconds – does not tell the whole story. It’s just one tiny piece of evidence.”