The News (New Glasgow)

Proof often is elusive

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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.

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