*This story contains details of an alleged sexual assault
A Victoria massage provider acquitted of sexual assault could face a new trial after the Crown stated their intention to appeal the lower court ruling Wednesday.
The BC Prosecution Service (BCPS) filed the notice to appeal the acquittal of John Thomas Heintzelman, saying a new trial is in the public interest. Heintzelman’s acquittal of two charges of sexual assault came after the judge was unable to decide whom to believe, the complainants, or the alleged attacker.
The BCPS’s review of the ruling found “the judgment revealed errors of fact and law and that a reasonable argument can be made that the verdict would not necessarily have been the same if the errors had not been made.”
Police arrested and interviewed 66-year-old John Heintzelman on July 9, 2017, after a woman filed a police report claiming she had been sexually assaulted by Heintzelman during a massage appointment at his unlicensed Victoria home studio.
After the interview, Heintzelman was released on bail, including a condition that he refrain from offering massage services while on bail.
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The Victoria Police Department published a post on Facebook on Oct. 20, 2017, with details about the case to seek additional victims.
After seeing the police notice on Facebook on the day that it was posted, a second woman contacted the police with a complaint of sexual assault against Heintzelman that allegedly occurred in 2013.
“I suppressed it right away. I was worried that I would not be believed because of my mental health issues,” the woman said in a statement to police on Nov. 2, 2017, answering the question to why she hadn’t reported the incident sooner.
Court documents show the two women’s accounts of the separate alleged incidents both involved Heintzelman telling them to remove all their clothes and to lie on their backs on his massage table. Both said he placed hot stones under their back and began to massage their body including their genitals and breasts. Both accounts noted he pinched their nipples very hard. Both women said Heintzelman placed their cupped hand under his penis and that he moved his body or their hand in a way that stroked his penis.
Heintzelman denied that he touched either complainant in a sexual way.
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In the Dec. 20 ruling, provincial court Judge Ted Gouge stated each of the witnesses “presented as eminently credible,” with Crown counsel submitting that, by reason of the similarity of their accounts, the evidence of each complainant is corroborative of the other.
However, the judge stated in his ruling that two things reduced the “corroborative weight” of the women’s testimony: the potential impact of the one woman’s mental illness on her evidence, and police conduct during the investigation.
Gouge said that he had very little information to assist in assessing the impact, if any, of the one woman’s mental illness or her medication on the reliability of her evidence.
He noted that the Facebook post the Victoria police had published to seek additional witnesses, tainted the ability to test the veracity of the second complaint that came forward. The post had included Heintzelman’s name and the address where the assault took place, things the police could have used in questioning to corroborate the accounts.
The judge also warned police that the publication of a notice containing the name of the suspect could prejudice the right of the accused to a fair trial, particularly where the accused elects trial by jury and may also unfairly damage the reputation and livelihood of the suspect if the allegation is unfounded.
After consideration of all of the evidence, Judge Gouge ruled on Dec. 20 that he found himself in a position where he was unable to decide whom to believe, so was “obliged to acquit Mr. Heintzelman.”
The Prosecution Service is seeking a ruling from the Supreme Court of British Columbia that the acquittal be set aside and a new trial ordered.
The appeal has been set for hearing on the week of June 17.
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