Halifax judge ignored quite a bit
No ‘evidence of lack of consent.’ Really?
As one who has had sex when intoxicated, consented and even initiated same, I cannot disagree with the latest judge to spark outrage across the land when he said this week in an oral decision given from the bench, “Clearly, a drunk can consent.”
Indeed, if we are to be realistic about this, probably half the sexual encounters in the western world are at any time fuelled by alcohol or drugs. As a young woman, certainly, a good many of mine were.
But in the particular case that was before Nova Scotia Provincial Court Judge Gregory Lenehan, wow, I struggle to understand his decision.
I rush to point out that I am not a lawyer, so it may be that the judge wasn’t merely seeing how many angels he could make dance on the point of a pin when he acquitted taxi driver Bassam Al-Rawi of sexual assault, but that’s sure how it looks to me.
On the evening of May 22-23, 2015, when the young woman in question (her name is protected by the standard publication ban) was luckily found sprawled in Bassam Al-Rawi’s taxi by Const. Monia Thibault, she was drunk and unconscious.
She was in the back seat, with her head toward the rear passenger side door, her legs propped up on the front bucket seats. She was naked from the breasts down.
Her urine-soaked pants and underwear, turned inside out as they are when they are stripped off someone, were in Al-Rawi’s hands, and he was trying to shove them between the front seat and the console.
The rest of the young woman’s stuff was all over the cab — shoes under his feet in the driver’s compartment, purse and jean jacket on the front passenger seat, cellphone and wallet on the floor of the front passenger seat.
As for Al-Rawi, his seat was partially reclined, his pants undone, the zipper down a few centimetres and, at the rear, his pants were down about 15 to 20 centimetres.
The officer came upon the cab in a south-end Halifax neighbourhood not obviously on any route between where the young woman (she is apparently in her 20s) hailed it and her home address.
She’d hailed the cab at 1:09 a.m. She was discovered by the constable 11 minutes later.
All of these facts the judge
A LACK OF MEMORY DOES NOT EQUATE TO A LACK OF CONSENT.
found variously “of concern” and “greater concern;” they led him to remark that he wouldn’t want Al-Rawi driving his daughter or any other young woman around town and that cabbies have “a moral obligation” not to take advantage of intoxicated passengers.
However, he asked aloud, “What do you make of it?” He appears to have found it all a great mystery.
The judge was troubled by the fact that the young woman had no memory from the time after she arrived at the bar and had three drinks. She didn’t remember trying to get back in the bar and being denied; she didn’t remember fighting with her best friend and her boyfriend; she didn’t remember texting them.
There were none of her bodily fluids in the cab; as the judge reasoned, if she’d wet herself in the vehicle, there might have been some DNA on the car seats.
Her DNA was found on Al-Rawi’s upper lip, but the source of the DNA couldn’t be identified. The judge figured it got there because, after handling her urinesoaked pants, the cabbie likely absent-mindedly wiped his hand or fingers over his lip area.
And because the complainant had no memory, the judge said, she “might very well have been capable of appearing lucid but drunk and able to direct, ask, agree or consent to any number of different activities. A lack of memory does not equate to a lack of consent.”
He concluded, “based on the circumstantial evidence placed before me,” what he said was logically probable — that it was Al-Rawi who stripped her pants off and “was engaging in or about to engage in sexual activity with a woman who is incapable of consenting.”
Thus, the judge said, the criminal charge was reasonable, but the prosecutor “failed to produce any evidence of lack of consent.”
Really? Judges tell juries every day of the year that circumstantial evidence is as good as direct evidence.
As prosecutor Shane Parker said, as he recently convinced a jury to convict Douglas Garland on three counts of first-degree murder though the bodies of the victims were never found, circumstantial evidence is not some “ugly stepsister.”
In the 11 minutes she spent in Al-Rawi’s cab, the circumstantial evidence — a woman so drunk she had already probably peed her pants — looks equally convincing that she did not glance at the 40-year-old, decide right then and there to have sex with him and ask him to remove her pants, pretty please, oh, and then pass out.