Michael Aaron Cady doesn’t dispute that when he made sexual advances toward a woman who was staying on his couch one night in 2013, she said “unh-unh,” according to court documents.
But the Salt Lake City man argues he overcame his guest’s initial hesitance and they had consensual sex. He also says there was insufficient evidence to establish that he consciously disregarded the risk that the woman did not consent to the encounter.
The Utah Court of Appeals disagreed and issued a 3-0 ruling last week affirming Cady’s object rape conviction.
The judges pointed out that the Utah Supreme Court previously has indicated that just ignoring a victim’s “no” may be sufficient for a rape conviction, even without the use or threat of force. And the jury in Cady’s case heard more evidence of nonconsent, according to the ruling.
Writing for the court, Judge David Mortensen said, “No means no. So does ‘unh-unh,’ especially when accompanied by a host of other nonverbal cues — such as pushing an assailant away, turning away from him, crying and curling up in fetal position. When Defendant Michael Aaron Cady ignored Victim’s several expressions of nonconsent, he committed object rape.”
Cady, now 30, was convicted by a 3rd District jury in September 2015 of first-degree felony object rape, but acquitted of two counts of rape. Judge Katie Bernards-Goodman sentenced him to five years to life in prison.
Court documents say the victim, who was seven months pregnant and a friend of Cady’s wife, was covered by a blanket and lying on the couch of the couple’s Avenues home when the assault occurred on April 7, 2013. The woman had not fallen asleep yet when Cady came into the living room, touched her under the blanket, whispered something in her ear and kissed her shoulder and neck, the ruling says.
The victim pushed Cady’s hand off of her and said “unh-unh,” the ruling says. Cady then tried to pull her pants down but she held onto them, shook her head and curled up her legs.
Cady eventually pulled the pants down, twisted the woman’s arm behind her and inserted his fingers in her vagina, the court records say. He left the room for five minutes, then returned and had sex with the woman, the ruling says.
The victim has maintained the sex was not consensual and alleged Cady also had raped her more than a year earlier when she had been staying on his couch. She reported the incidents — the object rape and the alleged rape in April 2013, and the earlier alleged rape — to police the next day.
Cady agreed the encounters took place but said they were consensual. He told police in a recorded interview that being “a very persuasive person” and having “a gift with people,” he overcame the woman’s hesitance, the ruling says.
At trial, he claimed she “never directly said no,” the ruling says.
Cady also contends in his appeal that the testimony by the woman of what she did when he approached her — including saying “unh-unh” once, pushing his hand away and curling up in a ball — “did not establish that she expressed a lack of consent by words or conduct,” the ruling says.
In addition to rejecting that argument, the Court of Appeals declined to overturn Cady’s object rape conviction on the basis of inconsistent verdicts on the other two rape charges.
“A jury’s finding that the State did not meet its burden of proof of nonconsent is not a finding of the inverse — that there was consent — just as a verdict of ‘not guilty’ is not a verdict of innocence,” the ruling says.
