20 January 2022

'Susceptible to misinterpretation': masseur found not guilty of fondling client's breasts on appeal

| Albert McKnight
Timothy Van Eyle

Masseur Timothy Van Eyle leaving the ACT Courts in April 2021. Photo: Albert McKnight.

A masseur alleged to have inappropriately touched one of his clients has had his conviction overturned on appeal.

Special Magistrate Jane Campbell found Timothy Van Eyle guilty of a charge of committing an act of indecency without consent in the ACT Magistrates Court in April 2021.

When Supreme Court Justice Chrissa Loukas-Karlsson announced her findings overturning the original decision, she said the complainant she went to Spa Mint in January 2019 for a massage and facial and claimed, when Mr Van Eyle was massaging her neck, he asked, “do you want me to do the rest of your chest?”

She said “sure”, thinking he would massage the muscles surrounding her chest. However, she alleged he started “fondling” her breasts.

Mr Van Eyle said he massaged her breasts as he thought she wanted him to, claiming she exposed part of her breast to him, although he did accept this may have been by accident. He said he checked she wanted him to by asking her, “do you want me to massage your whole chest?”

He also said he used the term “whole chest” instead of “breasts” because he didn’t want to come across as sexual.

Mr Van Eyle said he had no sexual interest in the massage and had used standard relaxation techniques.

When appealing Special Magistrate Jane Campbell’s guilty finding, he argued she made a mistake by rejecting the possibility he believed the complainant had indicated her consent to him.

When Justice Loukas-Karlsson announced her decision, she said, “this is a case in which the conduct is susceptible to misinterpretation”.

“It is entirely reasonably possible on examining all the evidence that the complainant and the appellant [Mr Van Eyle] have both honestly reported different perceptions of the treatment,” she said.

She said, “it is a reasonable possibility that the appellant was giving truthful evidence when he testified that he believed the complainant had indicated consent to the massage he undertook”.

She found him not guilty and upheld the appeal.

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