Acquittals stir debate over consent
Cabbie had sex with intoxicated woman found unconscious in car
HALIFAX — A Halifax taxi driver has been acquitted of sexually assaulting a young woman who was found drunk and unconscious in his cab, prompting a renewed debate over how Canadian courts react when the issue of consent is mixed with heavy drinking.
Judge Gregory Lenehan ruled the Crown failed to prove beyond a reasonable doubt that the woman did not consent to sexual activity with driver Bassam Al-Rawi.
The 40-year-old man was charged after police found the woman, in her 20s, passed out and naked from the breasts down in his car in the early hours of May 23, 2015.
The woman testified she had no memory of what happened in the cab, and the provincial court judge concluded his decision Wednesday by saying: “A lack of memory does not equate to a lack of consent.”
Lenehan also bluntly stated: “Clearly, a drunk can consent.”
The ruling came days after a jury in St. John’s, N.L., acquitted police Const. Doug Snelgrove of sexually assaulting an inebriated woman he was driving home from a bar while on duty, in a case that sparked a protest outside police headquarters.
Lenehan’s comments and the graphic details of the Halifax case have re-ignited a spirited discussion about how the courts treat allegations of sexual assault when the complainants can’t recall what happened.
Kim Stanton, legal director at the Toronto-based Women’s Legal Education and Action Fund, said consent is a key factor in such cases, but so is the victim’s level of incapacity.
“The Supreme Court of Canada has been very clear that a woman cannot consent to sex if she’s incapacitated, whether due to alcohol or otherwise, and that has been an important holding in our law,” she said in an interview Thursday.
“The law in Canada is that only yes means yes. That’s our standard of consent … It must be affirmative and ongoing consent.”
Stanton said that standard is not being applied evenly in courtrooms across the country, which she said is why the cases in Halifax and St. John’s are undermining confidence in the judicial system.
“That’s why so few women report their sexual assaults to police in the first place. Cases like this magnify the problem for the few women whose cases actually do proceed through to a trial.”
The Canadian Judicial Council confirmed Thursday it has received multiple complaints about Lenehan, but the council does not review the conduct of provincial court judges.
In the St. John’s case last week, a 21-year-old woman who had been drinking downtown approached a parked police cruiser in the early hours of the morning in December 2014, and asked for a ride home, saying later she thought it was safer than taking a taxi.
At Snelgrove’s trial, she testified the night ended with her passing out — then waking up as Snelgrove was having sex with her. She said she could not remember whether she had consented.