SUPERIOR COURT OF JUSTICE

Court file No. CR-19-00009683-0000

HIS MAJESTY THE KING

v.

JONATHAN BRETT-CARRILLO

REASONS FOR SENTENCE

BEFORE THE HONOURABLE JUSTICE BRAID

On February 9, 2023, at KITCHENER, Ontario

ANY INFORMATION THAT COULD IDENTIFY THE VICTIM SHALL NOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4(1) OF THE CRIMINAL CODE OF CANADA

APPEARANCES:

B. SCHNELL

Counsel for the Crown

M. HAYWORTH

Counsel for Jonathan Brett-Carrillo

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

REASONS FOR SENTENCE

1

APPENDIX A - CHART

24

LEGEND

[sic] Indicates preceding word has been reproduced verbatim and is not a transcription error.

(ph) Indicates preceding word has been spelled phonetically

Transcript Ordered:

February 21, 2023

Transcript Completed:

March 29, 2023

Ordering Party Notified:

March 29, 2023

Thursday, February 9, 2023

REASONS FOR SENTENCE

BRAID, J. (Orally):

I am prepared to give my reasons at this time. I have given Mr. Reporter my draft outline. I am not going to be releasing a written decision, but I believe one might be ordered, I am not sure. In any event, if anyone wishes to receive a copy of these reasons, they will have to order the transcript.

I note that a ban on publication was previously made in this case, pursuant to section 486.4(1). The order directs that any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way. In these reasons I may refer to the complainant by her full name. If and when a transcript of these reasons is ordered, it shall refer to the complainant by initials only. The following are my reasons for sentence.

I. Overview

Jonathan Brett-Carrillo was tried by a judge and jury on a charge of sexual assault on the complainant J.L. On June 6th, 2022, the jury found Mr. Brett-Carrillo guilty of sexual assault.

II. Facts

A) Non-Contentious Facts

On May 31, 2017, the complainant, J.L., went with a friend to a bar and had a few drinks throughout the evening. They ran into Mr. Brett-Carrillo and his friend and went to Mr. Brett-Carrillo’s house. J.L. and Mr. Brett-Carrillo did not know each other before that night.

When they were leaving the bar, Mr. Brett-Carrillo told the complainant that nothing sexual would happen if she did not want it to happen. The complainant felt more comfortable going to his house knowing that sexual activity was not an expectation.

While at the house, the complainant consumed marijuana from a bong and immediately started to feel the effects. Mr. Brett-Carrillo physically picked her up. Her friend asked her if she was okay. She said she was fine. He carried her downstairs.

He placed her on the couch. He kissed her and made a comment about how she was really sleepy and should take some Molly, (MDMA) to wake her up. She said no.

There was mutual kissing and then he went upstairs for a few minutes. The complainant went to the bathroom and then got her jacket and used it to cover herself when she laid back down on the couch. When he returned, there was sexual intercourse.

B) Positions of the Parties at Trial

The Crown argued that the complainant did not consent, either by words or actions, and that she did not have the capacity to consent at the material times.

Defence counsel argued that the complainant was an active and willing participant at all times, until the accused stopped partway through the sexual intercourse when he realized that she had passed out. These are two diametrically opposed positions.

C) Submissions of Defence Counsel at Sentencing

Defence counsel submits that the court must make findings of fact regarding whether the complainant was incapacitated when intercourse started and whether the accused knew that she was incapacitated at that point. Counsel submits that the findings will inform the aggravating facts on sentence.

The jury convicted Mr. Brett-Carrillo and therefore must have accepted the Crown’s theory that the accused had sexual intercourse without the complainant’s consent and while she lacked the capacity to consent.

I have carefully reviewed my trial notes. In her closing submissions, the Crown urged the jury to accept the complainant’s evidence, including her denial that she communicated consent in any way. The Crown reminded the jury that they may accept some, none, or all of the witness’s evidence. She told them that, even if they believe that the complainant expressed consent before the accused went upstairs, that does not fully answer the question of consent, as there must still be consent throughout the sexual activity.

Having considered this portion of the Crown’s closing address, it appears that the jury could have potentially considered an alternate theory. In the alternate path to conviction, the jury could have believed that the complainant initially consented, but she became incapacitated during the sexual activity and that the accused continued to have sexual intercourse with her despite knowing that she was incapacitated and unable to consent.

While I do not believe there is a significant difference in culpability between the Crown’s main theory and this alternate theory, I accept that it is aggravating if the complainant never consented to sexual intercourse. I must therefore make findings of fact regarding the consent and capacity to consent issues.

D) Findings of Fact

As the sentencing judge, I must do my best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict. I am required to make only those factual determinations necessary for deciding the appropriate sentence in this case. I must accept as proven all facts, expressed or implied, that are essential to the jury’s verdict of guilty. When the factual implications of the jury’s verdict are ambiguous, I should not attempt to follow the logical process of the jury but should come to my own independent determination of the relevant facts. To rely upon an aggravating fact, I must be convinced of the existence of that fact beyond a reasonable doubt: R. v. Ferguson, 2008 SCC 6.

The findings of fact in this case are dependent upon my assessment of the credibility of the complainant and the accused. In order to determine whether the Crown has proven any aggravating facts beyond a reasonable doubt, I start with an assessment pursuant to the analysis in R. v. W.D., 1991 CanLII 93 (SCC), [1991] SCJ No. 26.

In this case, I do not believe Mr. Brett-Carrillo’s evidence, nor am I left in a reasonable doubt by it, for the following reasons:

1. Mr. Brett-Carrillo gave a statement to police approximately one year after the incident. At trial, Mr. Brett-Carrillo was asked about the following inconsistencies between his police statement, Facebook messages and his evidence at trial. These inconsistencies were presented to the jury in a chart form in the jury instructions as follows, and I will read them now into the record. I will also attach the chart as Appendix A to the ruling as it will be easier to read the chart in written form.

The first subject was the communication prior to sexual intercourse. In his police statement, he denied stating, “I’d really like to fuck you.” He told the officer they, “were just getting into it,” and “there was not much talking down there.” In his Facebook messages, he stated: “I asked to sleep with her. She said what are you waiting for?” At trial he said, “I’d really like to fuck you.” The complainant said, “what are you waiting for?”

On the subject of sexual positions during intercourse, in his police statement he said he was on top of her. He does not remember trying to put her in any other positions, and in his trial evidence he said there was sex in the missionary position, followed by sex with the complainant on top.

On the subject of the condition of the complainant upon the accused noticing her incapacity, during his police statement, he said she was passed out. On his Facebook messages he said she was passed out, and at trial he said the complainant was tired, drowsy, and passing out. He also in his police statement said he tried to wake her up. In his Facebook message he said he tried to wake her up, and at trial he stated that he tried to wake the complainant up. In re-examination, he testified that he tried to keep the complainant awake.

On the subject of in the car on the way to drop off the complainant and her friend: in his police statement he said she was really, “shooken up” because she, “didn’t even know who she was having sex with.” At trial, he denied that the complainant was shooken up or didn’t even know who she was having sex with.

Mr. Brett-Carrillo did not provide an adequate explanation for the differences in his statement to police, the Facebook messages and his evidence at trial. When he was asked about some of these inconsistencies, he blamed some of them on the accuracy of the transcript of the police statement. When the actual video of the statement was played, he then blamed it on a mistake that he himself had made and suggested that the officer was putting words in his mouth. The inconsistencies in his evidence are specifically on the issue of consent and render his evidence at trial unreliable and incredible.

2. The description of events in his police statement is somewhat similar to the complainant’s version of events. The version of events given at trial were intended to create the impression that the complainant was an active and willing participant in the sexual activity. I find that his trial evidence was contrived.

3. At trial, he stated that the complainant was engaging in the sexual activity and then he noticed that, “she was tired,” so he stopped. In his earlier statements, he specifically stated that she passed out. At trial, he was asked about the use of the term “passed out”. He was evasive and attempted to explain the use of the words “passed out” in a way that made no sense.

4. He told the police that, after she passed out, he thought to himself, “Holy shit this girl passed out.” At trial, he acknowledged that he was concerned that she had passed out. Even though he acknowledged that it would be a surprising and concerning turn of events for someone to pass out during sexual intercourse, he described how he went into the washroom to masturbate for five minutes after he realized that she had passed out. I do not accept his evidence that she was an active participant and then suddenly passed out during intercourse. His version of events is not believable.

I find that Mr. Brett-Carrillo’s evidence was evasive, unbelievable, illogical, and contrived. On the issue of consent, I do not believe his evidence nor am I left in a reasonable doubt by it.

I accept the evidence of the complainant in its entirely, particularly on the issue of consent. The complainant gave her evidence in a straightforward manner and did not contradict herself. She was not evasive. She acknowledged when she did not remember certain events. She admitted that she did not explicitly say no. She did not exaggerate her evidence.

I find that the Crown has proven, beyond a reasonable doubt, that the complainant did not express consent at any point in time. Although there was mutual kissing on the couch before the accused went upstairs, she was incapacitated and unable to consent when he returned and before the sexual intercourse took place. The complainant was incapacitated when the intercourse started, and the accused knew that she was incapacitated at that point.

I make the following additional findings of fact:

1. Prior to this sexual activity, Mr. Brett-Carrillo commented on how sleepy she was and that she needed to wake up.

2. He asked her if she would like to fuck. She did not respond verbally and only groaned.

3. When he made a second request, she did not respond verbally, but physically moved away from him.

4. He removed her leggings, underwear and socks. He moved her legs apart and put his penis in her vagina, having sexual intercourse on top of her.

5. He tried to pull her on top to straddle facing him, but she was so out of it, her body just fell back on the couch. She did not move her body at all during the sexual activity.

6. The complainant did not want Mr. Brett-Carrillo to have sexual intercourse with her. She did not tell Mr. Brett-Carrillo that she wanted to have sex with him, nor did she do anything to indicate to him that she wanted it to happen.

7. During the intercourse, the complainant was unable to move or speak and could not stop it. She was in and out of consciousness.

8. At one point he put his hand or hands around her throat. Although it was not choking, she did not feel safe but could not stop what was happening to her.

9. While Mr. Brett-Carrillo was in the bathroom, the complainant’s friend came downstairs and shook her to wake her up. The complainant felt very disoriented and dizzy and asked what happened. Her friend helped her to get her clothes on, found her clothes as she did not know where they were and passed them to her.

E) Circumstances of the Offender

Jonathan Brett-Carrillo is currently 26 years old. His childhood included struggles with family violence, poverty and instability. He has limited contact with his father. He was placed in a foster home for a period of time before being reunited with his mother. He struggled in high school with social anxiety and victimization. He was able to successfully complete his high school credits. He is described as a hard worker. He states that he struggles with anxiety and depression, but has not sought assistance for these issues.

He does not take responsibility for the offence and stated to the writer of the pre-sentence report that he, “would never want friends or family to think of him that way.”

When I asked Mr. Brett-Carrillo if he had anything to say, he stated that he is extremely sorry for everything that has happened and that he would never want a woman to feel the way the victim did in this case. However, many of his comments were about how the incident has impacted him. He stated that this process has been terrifying and one of the hardest things he has had to deal with. He has not felt safe and that “you really have to know the person before going that step with them.” While it is his right to maintain his innocence, he does not appear to have real insight into his behavior, nor the impact it has had on the victim.

Mr. Brett-Carrillo was arrested and released the

same day on a promise to appear.

F) The Impact on the Victim

The victim states: “There is not one aspect of my life that…has not been poisoned by what happened.” She fears normal activities and experiences anxiety over simple things like walking in public or sitting next to a male on the train. She lives in a perpetual state of worry that she might be assaulted again and there would be nothing she could do about it.

The victim’s mental state has suffered enormously. She has withdrawn and isolated herself from her friends and family. She had trouble eating, sleeping and even having normal conversations. She was drinking heavily to try and numb the pain. She had to take a one-year break from university to deal with the emotional and mental trauma. The offence has had a significant impact on the victim.

III. Crown and Defence Positions

Crown counsel seeks a sentence of three and a half years in custody. Defence counsel seeks a sentence of two years less a day to be served in the community as a conditional sentence.

The parties agree on the following ancillary orders: A s. 109 weapons prohibition for 10 years and a DNA order.

The Crown also seeks an order pursuant to sections 490.012(1) and 490.013(1) and (2)(b) of the Criminal Code requiring the accused to comply with the provisions of the Sex Offender Information Registration Act for 20 years. Defence counsel has considered the decision in R. v. Ndhlovu, 2022 SCC 38 and will be obtaining instructions on whether to bring a Charter application to seek an exemption from the SOIRA provisions. Therefore, the court will address the SOIRA order issue on a later date.

IV. Analysis

A. What is the fit and proportionate sentence in this case?

i. Aggravating and Mitigating Factors

Mr. Brett-Carrillo was convicted following a trial. I will not treat this as an aggravating factor. However, he is not entitled to any mitigation that may have been available after a plea of guilt.

The following are mitigating factors in this case.

1. Mr. Brett-Carrillo is a first offender.

2. He had a difficult childhood, including struggles with family violence, poverty and instability.

3. Although there is no medical diagnosis, I accept that he suffers from anxiety and depression.

4. He is currently working at a landscape company and provides financial support for his mother and sister. He is a hard worker and contributes to the community.

5. He has the support of his family. I note that his mother and sister were present when the sentencing submissions were made, and his mother is present today. I thank them for their attendance.

6. While I have noted that Mr. Brett-Carrillo lacks insight into the impact of this offence on the victim, I accept that he is sorry for what has happened, and he has made an apology, which is a mitigating factor.

The following are the aggravating factors:

1. The complainant trusted Mr. Brett-Carrillo because he promised that nothing sexual was going to happen if she didn’t want it to. He broke that promise.

2. Mr. Brett-Carrillo took advantage of the complainant’s vulnerability, knowing that she was incapacitated and not in a position to protect herself.

3. He asked the victim twice if she would like to fuck. The first time she groaned and the second time she physically moved away from him. The complainant did not verbally consent, and her nonverbal cues and body language conveyed that she did not consent. He still proceeded to remove her clothing from her lower body and engage in sexual intercourse with her.

4. Sexual assault is an act of violence.

5. The victim was penetrated, which is inherently degrading and traumatizing and has a profound effect on the dignity and sexual integrity of the victim.

6. At one point during the sexual intercourse, he put his hand around her throat. This was an invasive penetrative sexual assault with the added frightening element of his hand or hands around her throat when she was helpless to stop it.

7. The fact that the offence had a significant impact on the victim is a statutory aggravating factor under section 718.2(a)(iii.1).

ii. The kind of sentence that needs to be imposed

The offence of sexual assault committed against an adult and prosecuted by indictment has a maximum penalty of 10 years incarceration.

The fundamental purpose of sentencing is to protect society, to ensure respect for the law and to maintain a just, peaceful and safe society. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A just sentence meets the goals of deterrence, denunciation, retribution, and rehabilitation.

All sexual assaults are serious acts of violence. Victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. Their personal autonomy, sexual integrity and dignity are harmfully impacted while being treated as nothing more than an object. All forms of sexual violence involve the offender wrongfully exploiting the victim and disregarding their human dignity: R. v. Friesen, 2020 SCC 9 at para. 89 and R. v. A.J.K., 2022 ONCA 487 at para. 74.

Our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened. Sentencing in sexual assault cases must denounce this conduct and deter like-minded individuals from committing such offences. Sexual assault is still among the most highly gendered and underreported crimes: R. v. Goldfinch, 2019 SCC 38 at para. 37.

In coming to a just sentence, the court must consider the aggravating and mitigating factors unique to each case. Sentencing is a highly individualized process, and each case must turn on its own specific facts. The Court of Appeal has stated that sentencing judges have wide discretion when imposing sentences: R. v. Kerr, 2001 CanLII 21142 (ON CA), 2001 O.J. No. 5085(C.A.).

I have considered the principles of sentencing as set out in section 718 to 718.2 of the Criminal Code. One must keep in mind the goals of parity, consistency and fairness in applying those principles.

Sorry, I am just going to take a 10-minute break. So we will stand down and we will come back in 10 minutes. What time is it right now? Okay, we will come back at 11:15, thank you.

MR. SCHNELL: May I make a comment before…

THE COURT: Yes.

MR. SCHNELL: …before we do so? In your judgment, Your Honour mentioned Mr. Brett-Carrillo has not been charged with any breaches. That is not true. They are not before the court. They are being dealt with in the Ontario Court of Justice. There is no finding of guilt on those. They weren’t raised because the Code prohibits raising those in these circumstances if they are not before the court. But he has been charged with breaches.

THE COURT: Okay, so I will remove that as a mitigating factor. It is obviously not aggravating.

M. SCHNELL: No.

THE COURT: But when the transcript is ordered we will remove that from the mitigating factors.

MR. SCHNELL: Thank you. I just didn’t want to have the Court misled.

RECESS

UPON RESUMING

THE COURT: Thank you. I am going to continue then with my reasons. I have considered the principles of sentencing as set out in section 718 to 718.2 of the Criminal Code. One must keep in mind the goals of parity, consistency, and fairness in applying those principles. In this case, I find that denunciation and deterrence are key principles which factor into the sentencing of Mr. Brett-Carrillo. Having said that, I must consider all of the goals of sentencing, including rehabilitation and restraint.

I understand that Mr. Brett-Carrillo does not have a criminal record, and this will be his first custodial sentence. However, the offence reflects a high degree of moral culpability. While his actions were not planned, he chose to sexually gratify himself when the victim was passed out and completely vulnerable.

Parity in sentencing refers to the principle that similar offences committed in similar circumstances by an offender of a similar background should attract a similar sentence. Having reviewed the authorities provided to me, it is clear that there is a broad range of sentences that have been imposed in similar cases. Each case must turn on the individual circumstances of the case and the offender.

More recently in R. v. Friesen, 2020 SCC 9, R. v. Barton and R. v. Goldfinch, 2019 SCC 38, the Supreme Court of Canada has signaled that courts must consider the harm resulting from sexual assaults committed on both children and adults as part of the sentencing process. This growing understanding reflects how courts assess the gravity of the offence.

I have reviewed the cases provided by the parties. They provide helpful guidance to the court, but many are distinguishable from the case before the court because their facts are different or they pre-date the Ontario Court of Appeal’s decision in R. v. A.J.K., 2022 ONCA 487, which I shall discuss in a few moments.

The principles as discussed in Friesen, Barton, and Goldfinch are reflected in the A.J.K. case which provides some guidance with respect to how sentencing of sexual offences is to be approached. The court notes that our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened and continues to deepen.

There is a broad range of sentences that have been imposed in similar cases. Each case must turn on the individual circumstances of the case and the offender. Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary: R. v. A.J.K., 2022 ONCA 487 at para. 77.

Defence counsel provided the following cases:

1. R. v. P.M., 2022 ONCA 408. In that case, the Court of Appeal upheld a three-year sentence for a sexual assault, arguably with more aggravating factors than the case before the court. It is notable that the court upheld a sentence that is within the range discussed in A.J.K. which was decided a month later.

ii. In R. v. Holland, 2022 ONSC 1540, the offender sexually assaulted a young woman by penetrating her vagina with his finger. The entire incident lasted about 10 to 15 seconds and he stopped when the victim said stop. The Crown sought a sentence of 16 months. The sentence was significantly delayed due to the pandemic and the accused had been on restrictive bail conditions. There was no suggestion that the victim was unconscious or incapacitated. The court imposed a conditional sentence of 9.5 months, in light of the offender’s personal circumstances. This case is distinguishable because the assault involved digital penetration only and lacked many of the aggravating factors that exist in this case.

iii. The Court of Appeal decisions in R. v. Ghadghoni, 2020 ONCA 24 and R. v. Mckenzie, 2017 ONCA 128 predate the A.J.K. decision.

In Ghadghoni, the court referred to the Smith sentencing range, which was specifically overturned in the A.J.K. decision.

In Mckenzie, the accused was not a permanent resident and would likely have been deported given the sentence. The court found that the accused had excellent prospects for rehabilitation. These decisions have little precedential value.

The case before the court does not present with any highly mitigating factors. While there are some mitigating factors, there are also significant aggravating factors, including the fact that the victim was incapacitated during the entirety of the sexual intercourse and that Mr. Brett-Carrillo put his hand or hands around her throat during the assault.

Having considered all of the factors in this case, I find that an appropriate sentence on the sexual assault charge is one of three and a half years.

iii. Appropriateness of a Conditional Sentence

Defence counsel asked me to consider a conditional sentence of two years less a day. The parties agree that a conditional sentence is lawfully available in this case. However, I have concluded that the proper sentence is one of three and a half years, therefore a conditional sentence is not available.

In addition, because the offender’s moral culpability is high and the crimes have had a significant impact on the victim, a conditional sentence is not a proportionate penalty that adequately reflects the sentencing principles of deterrence and denunciation: R. v. Christink, 2012 ONCA 141 at para. 5. A conditional sentence would not reflect the gravity of the offence, the harm caused to the victim and Mr. Brett-Carrillo’s significant moral culpability.

V. Actual Sentence

Mr. Brett-Carrillo, would you please stand.

On the single count of sexual assault, I sentence you to 42 months in custody. You may have a seat while I read the ancillary orders.

I also make the following ancillary orders:

a) Non-communication order pursuant to section 743.21.

There will be an order pursuant to section 743.21 of the Criminal Code prohibiting Jonathan Brett-Carrillo from communicating, directly or indirectly, with J. L. while he is serving his sentence.

b) DNA testing.

A sexual assault is a primary designated offence pursuant to section 487.04, there will be an order pursuant to section 487.051 of the Criminal Code authorizing the taking from Jonathan Brett-Carrillo for the purpose of forensic DNA analysis, any number of samples of one or more bodily substances that is reasonably required for that purpose.

c) Firearms Prohibition.

There will be an order pursuant to section 109 of the Criminal Code prohibiting Jonathan Brett-Carrillo from possessing any firearm other than a prohibited firearm or restricted firearm, crossbow, restricted weapon, ammunition, and explosive substance for 10 years after his release from prison and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited

ammunition for life.

THE COURT: Counsel, do you understand the sentence?

MR. HAYWORTH: Yes, Your Honour.

Form 3

ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))

Evidence Act

I,

William Tzavaras

(Name of Authorized Person)

certify that this document is a true and accurate transcript of the recording of

R. v. BRETT-CARRILLO

in the

Superior Court of Justice

(Name of Case)

(Name of Court)

held at

85 FREDERICK ST., KITCHENER, ONTARIO

(Court Address)

taken from Recording

4411_CrtRm-LL01_20230209_092453__10_BRAIDC.dcr

, which has been certified in Form 1.

June 23, 2023

(Date)

(Electronic signature of Authorized Person(s))

8848509379

(Authorized transcriptionist’s identification number- if applicable)

Ontario, Canada

(Province of signing)

A certificate in Form 3 is admissible in evidence and is proof, in absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.

R. v. Jonathan Brett-Carrillo Reasons for Sentence February 9, 2023 - Appendix A

Inconsistencies in Mr. Brett-Carrillo’s Evidence

Subject

Police Statement

Facebook Messages

Testimony at Trial

Communication prior to sexual intercourse

He denied stating “I’d really like to fuck you”. He told the officer they “were just getting into it” and “there was not much talking down there”

“I asked to sleep with her, she said what are you waiting for”

He said “I’d really like to fuck you”. The complainant said “what are you waiting for”

Sexual Positions During intercourse

He was on top of her. He does not remember trying to put her in any other positions.

N/A

There was sex in the missionary position followed by sex with the complainant on top

Condition of the complainant on the accused noticing her incapacity

She was passed out

She was passed out

The complainant was tired, drowsy, passing out

He tried to wake her up

He tried to wake her up

He stated that he tried to wake the complainant up. In re-examination, he testified that he tried to keep the complainant awake.

In the car on the way to drop off the complainant and her friend

She was really “shooken up” because she “didn’t even know who she was having sex with”

N/A

He denied that the complainant was “shooken up” or “didn’t even know who she was having sex with”