11/09/2016 11:40 EST

Alexander Wagar Trial: Alleged Calgary Rape Victim Asked About Penis Size In Consent

The same woman was previously asked "Why couldn't you just keep your knees together?''

CALGARY – The lawyer for a man being retried after a judge's controversial remarks in a sexual assault case has suggested his client's penis size may have played a role in whether the woman consented to sex.

Alexander Scott Wagar's lawyer, Pat Flynn, asked the woman during cross-examination Tuesday if she was attracted to his client after he flashed her and she saw that he was "larger than most men.''

"No,'' she responded vehemently.

Flynn suggested the sex was consensual because the two had been engaging in "aggressive foreplay.''

"No,'' she replied again.

The complainant told court that she had danced with Wagar after he flashed her and that she had complimented him on his dance moves.

Court has already heard how Wagar, 29, and the woman, 24, were at a party in a Calgary home in December, 2011.

The woman testified that she was in the bathroom when Wagar came in, locked the door and ripped her clothes off. She said the sexual assault lasted 15 to 20 minutes.

Wagar was acquitted of sexual assault in 2014 by Judge Robin Camp, who decided Wagar's version of events was more credible.

During the original trial, Camp referred to the complainant as the accused, asked her "Why couldn't you just keep your knees together?'' and said "pain and sex sometimes go together.''

Federal Court Justice Robin Camp arrives at a Canadian Judicial Council inquiry in Calgary, Sept. 6, 2016. (Photo: Jeff McIntosh/The Canadian Press)

The verdict was overturned on appeal and a Canadian Judicial Council panel is currently mulling over whether to recommend Camp be removed from the bench.

Flynn suggested the woman made up the rape allegation because she was upset Wagar had sex with another woman at the home after what happened in the bathroom.

"This sort of victim-blaming in cross-examination is a big part of why survivors of sexual assault so rarely report to the polic."

Wagar's brother, Flynn said, was bugging her about that.

"She then went from consensual sex to then saying it was rape,'' Flynn said. "When his brother starts trash-talking you – you're going to get back at him. You're going to say he raped you.''

The retrial is being heard by a judge without a jury.

Wagar, who took the stand in the afternoon, said he was angry that he was there for a crime that didn't happen.

"I've already done 15 months. I'm pretty ... bitter about the whole thing,'' he said before being cautioned by his lawyer.

Wagar said he and the complainant hit it off and started kissing in the bathroom at the home.

"I came over to her. I just kissed her. I just went for it and she kissed me back.''

He said they had sex on the sink and in the shower.

Accused says sex was consensual

"She never told me no and I did stop when she asked me if I had a condom and I said no and then she gave the OK to go-ahead,'' said Wagar.

He said his accuser became jealous of his attention to another girl and the charge against him was false.

"It didn't happen like that. I am not a ... rapist. My mother taught me to respect women from a young age. I would never force myself on anybody. That's wrong,'' he said.

'Victim-blaming' not a surprise: expert

Kim Stanton with Women's Legal Education and Action Fund has been following the case and said this sort of treatment of a sexual assault complainant isn't a surprise.

"Whether or not the young woman danced with the accused or complimented him on his dance moves has no bearing on whether she consented to the sexual activity in question. The question is whether the accused gained her affirmative consent,'' Stanton said.

"This sort of victim-blaming in cross-examination is a big part of why survivors of sexual assault so rarely report to the police, and the fact that this young woman is being subjected to this difficult cross-examination yet again shows considerable courage on her part. ''

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