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Capacity for consent

Two cases renew debate over when someone is too drunk to consent

When is someone legally too drunk to consent?

Two sexual assault cases in Atlantic Canada have triggered public outrage and are renewing questions about the justice system’s ability to deal with rape allegations, in particular when alcohol is involved.

In a case in Halifax, a police officer found a taxi driver with his pants undone and an intoxicated, unconscious woman in the back seat of his cab. The accused’s DNA was on the woman’s mouth, and a forensic analyst testified to her level of inebriation — but the judge ruled the Crown had not proven she did not consent to the encounter.

“Clearly a drunk can consent,” Judge Gregory Lenehan ruled on Wednesday.

“Clearly a drunk can consent.”

It comes after another case, last week, where a jury found a Newfoundland police officer not guilty of sexually assaulting a woman he drove home while on duty. Constable Doug Snelgrove admitted that he took the woman, who had been drinking, back to her house and had sex with her. She testified that she was extremely drunk and doesn’t remember consenting.

Both cases have sparked anger and disbelief. Protesters in St. John’s gathered outside police headquarters, demanding Snelgrove be fired. A petition with nearly 4,000 signatures is calling for an inquiry into Justice Lenehan.

These cases aren’t unique, but they do expose a running problem in the Canadian justice system: The courts have not been consistent in terms of where the line stands between sober enough to consent and drunk enough to be considered rape. These cases are the latest in Canada to thrust that debate into the spotlight.

Legally – what is consent?

Consent is defined in Canadian law as “voluntary agreement of the complainant to engage in the sexual activity in question.” The law focuses on what the complainant was actually thinking and feeling at the time of the sexual activity, and clearly states that the accused must “take reasonable steps” to obtain consent.

The law does not explicitly state how sober the parties must be to give that consent, but it does say that the sexual contact could be criminal if “the complainant is incapable of consenting to the activity” — which could mean that someone could be too intoxicated to consent.

“The trick is the application of that rule,” said Elaine Craig, associate professor at the Schulich School of Law in Halifax.

“Unfortunately you do see case after case in which triers of fact conclude that there isn’t sufficient evidence to demonstrate lack of consent because of complainant’s lack of memory,” she said.

“Legally, intoxication does not negate consent.”

The Supreme Court gave some direction on consent and sexual activity in 2011, although the case dealt specifically with a situation where one partner was unconscious when the activity took place, as a result of consensual choking. The decision noted that “while she consented to the choking, she had not consented to the sexual activity that had occurred.”

The majority of the court convicted the accused of sexual assault, finding that “actual active consent throughout every phase of the sexual activity” is required. “It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance,” they concluded. Three judges disagreed.        

While the case is a benchmark for consent and sexual assault, it does not specifically address alcohol and consent.

Allison Conway, a Newfoundland lawyer, said while, “ideally, we want people to make informed consent … Legally, intoxication does not negate consent.”

This fact is sometimes overlooked. A Carleton University student board, for example, tells students that, legally, “if the person you’re with is wasted, they can’t say yes to sex (even if they still possess the ability to speak without slurring their speech).” Which has not proven to be true.      

The law is quite clear, however, that if someone expresses a “lack of agreement” to continue the activity, and the other person continues, consent is withdrawn. 

Obviously, this can be a grey area. People’s perceptions of events can and typically will vary a great deal — especially when alcohol is involved. Courts are supposed to look at consent from the complainant’s point of view.

Who defines how drunk is too drunk to consent and what does that mean?

It’s up to a judge or jury to determine if the victim, however intoxicated, still had the capacity to consent.

“It’s a legal determination,” said Conway, noting that a judge is looking at whether someone is “capable of making informed decisions.”

“There have been cases when from an outside opinion it’s hard to imagine there was consent and yet an acquittal occurs,” said Craig. “Then there are some cases where judges have properly relied on intrinsic evidence [physical evidence, rather than testimony] to draw the conclusion that it defies logic that this complainant consented to sex in this context. But unfortunately, I think those cases are in the minority.”

“There have been cases when from an outside opinion it’s hard to imagine there was consent and yet an acquittal occurs.”

One of those cases came in December 2016, when Moazzam Tariq was convicted of raping a 25-year-old woman too intoxicated to consent, due in large part to surveillance footage that show him pouring alcohol down the victim’s throat at Everleigh nightclub in Toronto, and her inebriated state in the elevator of the Thompson Hotel. Tariq fled Canada after his conviction.

The case of Graham Christopher Haraldson is often used as precedent in the courts. In 2012, an Alberta court acquitted him, after concluding that an intoxicated woman he met outside of a bar was, in fact, sober enough to consent to sex.

And in the recent Halifax case of cabbie Bassam Al-Rawi, the victim was found by police unconscious, with a concentration of between 223 and 244 milligrams of alcohol in 100 millilitres of blood. But there was no proof of at what point in the night the sex occurred, and Judge Lenehan determined the woman’s lack of memory did not equal a lack of consent.

“Our legal system works on presumption of innocence for the accused. Are we willing to lower our standard of proof?”

The disconnect

Cases like the ones in Halifax and Newfoundland expose a disconnect between what the law says about sexual consent and what is morally understood and accepted.

“I understand the anger and the breach of trust,” said Conway, “but our legal system works on presumption of innocence for the accused. Are we willing to lower our standard of proof?”

Anuradha Dugal, director of the Canadian Women’s Foundation’s Violence Prevention Fund, worries about how acquittals undercut the public discourse around victims of sex assault.

“It’s an interpretation of the law, not an interpretation of the case.”

“It casts doubt on what they’ve said,” she said. “It’s an interpretation of the law, not an interpretation of the case.”

Added Craig: “These cases are always worrisome and they’re very difficult because we do, rightly, have a high standard of proof, alcohol does affect one’s ability to recall.”

“But it is concerning to see cases in which the advancements in the law with respect to the definition of consent are undermined; either because of stereotypical thinking about women and alcohol, or because of a failure to apply something like the reasonable steps requirement.”

Cover: Mark Blinch/Reuters

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