Proof often is elusive
Little wonder many people are steamed over a Halifax judge’s decision in a sexual assault case this week. The issue of consent – proving it wasn’t granted – was at the centre of the acquittal. With petitions and calls for a review underway, apparently a portion of the public feels Judge Gregory Lenehan got it wrong.
It’s not unusual to see people vehemently disagreeing over a legal decision. But in the area of sexual assault, it raises more alarm bells about the handling of such crimes where, by their nature, often the only people present are the victim and perpetrator. Proof in court depends on their stories and credibility.
When intoxication is involved, it gets even more complicated.
The judge is looking for proof – such as whether consent was not given. The public observing might employ a greater proportion of common sense.
This was a disturbing set of circumstances. The female victim had left a bar after consuming alcohol and said she didn’t remember taking the cab. A forensic analyst determined her blood alcohol level was as high as three times the legal limit.
When police came across the taxi she was unconscious – to the point that she’d urinated – her pants and panties had been removed and her legs were propped up on the cab’s front seats. The cab driver’s pants were undone and his zipper was down.
Lenehan in his ruling said the Crown couldn’t prove the woman hadn’t consented to this. And certainly that’s the kind of evidence court cases depend on. But an awful lot of people, using common sense, will seriously doubt that the woman consented – even though, granted, that’s not proof.
Even if she had consented to activity at some point, in a blacked-out state, is that consent still there? Remember, we have the accused there with pants undone. Many maintain consent isn’t possible from an unconscious person, and some are saying that is a central point, that consent can’t be assumed.
No one was in the cab besides the alleged victim and the driver. No one saw anything until the police intervened and provided these observations regarding the state of the two. Circumstantial evidence routinely enters trials, but apparently was granted little weight by this judge.
Lenehan’s blunt appraisal also perplexes some: “Clearly, a drunk can consent.” Well, sometimes, sometimes not, would be more accurate.
Canadians certainly want every accused to receive a fair trial, with convictions based on solid evidence.
Sexual assault is a serious, violent crime. The difficulty in proving the crime in court has the effect of victims being reluctant to report them. The justice system needs to have a look at how cases are investigated and prosecuted and clear up any confusion or difference in interpretation of what the laws state.