Canadian Jury Sees Video Of Sex Assault Against Teen Victim

TORONTO - From the impassive faces in the courtroom yesterday, it was not immediately obvious that some people were watching and hearing the videotapes while others were allowed only to listen.

But as the sounds of heavy breathing, whispered instructions and soft crying emerged from the sound system, it was clear to both classes of observers that this was a recording of pure horror.

The trial of Paul Bernardo, accused of kidnapping, sexually assaulting and murdering a teenage girl in 1991 and another in 1992, has been under way here for a month, and some of the most crucial evidence is now reaching the ears - and eyes - of the jury.

It consists of videotapes that Bernardo, a 30-year-old accountant, made of himself and his wife at the time, Karla Homolka, as they forced the captive teenagers - Leslie Mahaffy, 14, and Kristen French, 15 - to engage in degrading sexual acts and assaulted them. The tapes do not record the killings.

Bernardo and Homolka also made a video record of a December 1990 sexual assault on Homolka's 15-year-old sister, Tammy, that led to her death; that was the tape played in court Wednesday and yesterday, but only after a lengthy judicial controversy.

The tapes of the assaults became the subject of a legal battle earlier this year when the families of Mahaffy and French asked Ontario Associate Chief Justice Patrick LeSage to bar reporters and the general public from viewing the tapes as they were played for the jury.

On Tuesday, in what some here have called a classic Canadian compromise, LeSage ruled that the press and public could not view the tapes but could listen to the soundtrack.

Judges both here and in the United States are often faced with questions about what juries should and should not be allowed to see and what should be shown in courtrooms or made available to the media. In the Los Angeles murder trial of O.J. Simpson, for instance, Judge Lance Ito ruled Wednesday over defense objections that jurors could see grisly autopsy photos of the victims, Nicole Brown Simpson and Ronald Goldman.

In Canada, the right of privacy generally has more weight when balanced against the right to a public trial than in the United States. Samuel Pillsbury, a professor at Loyola Marymount University Law School in Los Angeles, said that an American court prohibition on public showing of videotapes like those in the Bernardo case "would probably violate the First Amendment right of access" to the courtroom. However, he added, allowing the press and public only to hear the soundtrack probably would be acceptable under American standards.

Evidence showed that Bernardo and Homolka had drugged Homolka's sister and that the girl had also consumed several alcoholic drinks before the assault began. On the tape audio, Bernardo can be heard urging Tammy Homolka to perform certain sex acts; her responses also are audible.

Jurors, who could both see and hear the video recording, remained largely impassive, although several raised their hands to their faces in a way that obscured their expressions from court observers.

The French and Mahaffy families listened to the audio track along with court spectators on Wednesday, but as prosecutors prepared to play it again yesterday - each segment is to be played three times to ensure that the jury has absorbed it - members of both families rose and left the courtroom.

Also yesterday, a lawyer for the families filed an appeal with Canada's Supreme Court asking that it overturn LeSage's ruling on the audio.

After she was assaulted, Tammy Homolka began vomiting and choking and was taken to a hospital, where she died the next day. Bernardo has been charged with sexual assault and manslaughter in her death, although he is not on trial for it at present. Karla Homolka, who was not charged in her sister's death, pleaded guilty to manslaughter in the deaths of French and Mahaffy and is serving a 12-year prison sentence.

Whether Homolka was a willing accomplice in all three assaults or whether she acted in fear of her life is one of the issues in Bernardo's trial. She is scheduled to testify against her former husband in the next few weeks.