Clearly the Justice is an Idiot : Rape Acquittal
"Clearly, a drunk can consent. [Someone] who is unconscious or is so intoxicated ... as to be incapable of understanding or perceiving the situation that presents itself [cannot provide consent under Canadian law]. This does not mean, however, that an intoxicated person cannot give consent to sexual activity."
"[Al-Rawi had a] moral or ethical [duty to see the complainant home safely, and he] is not somebody I would want my daughter driving with or any other young woman."
"Once he saw she had peed her pants, he knew she was quite drunk. He knew going along with any flirtation on her part involved him taking advantage of a vulnerable person."
Judge Gregory E. Lenehan, Halifax, Nova Scotia
George Lang / Wikipedia The Nova Scotia provincial court on Spring Garden Road in Halifax.
"We should be concerned when a trial judge in a sexual assault case refers to a complainant as 'a drunk'."This is not the first time that a Canadian judge has seen fit to acquit an accused rapist on the charges brought against them by a woman who has been violated. Recently in St. John's Newfoundland, a police officer had been acquitted of the charge of sexually assaulting a 21-year-old woman, because she was drunk at the time. "Drinking doesn't cause sexual assault, rapists do", stated Farrah Khan, co-ordinator of the office of sexual violence support and education at Ryerson University in Toronto.
"You can't consent if you lack capacity and to equate incapacity with unconsciousness is wrong. Lack of capacity presumably begins at some point prior to unconsciousness."
Elaine Craig, associate professor of law, Dalhousie University, Nova Scotia
Yet, she pointed out, intoxication is used as a mainstay in trials to discredit the reputation and veracity of complainants, despite evidence of the occurrence of assault. The infamous case of Justice Robin Camp stands as the standard-bearer for the incapacity of male justices to wrap their minds around rape as a crime committed against women whose physical frailty compared to the strength males can bring to overpowering women equals inequality.
He asked the young woman who had been raped in he case that he heard, why she couldn't keep her "knees together", giving her the added paternal advice that "sex and pain sometimes go together". After the ignominious trial ending in the acquittal of the accused, this man went on to become a judge in the Federal Court of Canada. Once his infamous remarks and the acquittal were brought to public light there was such a reaction that an enquiry is now considering removing him from the Federal Court.
Judge Lenehan was a Crown prosecutor for decades before being appointed in 2010 to the bench. He, like the other justices before him has obviously had ample opportunity to witness testimony about sexual assaults. He is also, doubtless well aware of the pitfalls of speaking extemporaneously and in poor judgement, if he keeps abreast of such incidents occurring elsewhere, eliciting public concern.
In this particular case, a witness, Constable Monia Thibault, describes discovering the 20-something woman "naked from the breasts down", unconscious in the back seat of a cab. Yet Judge Lenehan seemed to find it reasonable that Bassam Al-Rawi, 40, not be deemed guilty of sexually assaulting the young woman.
The cab driver's trousers, according to the officer, were descended and in his hands were the woman's tights and underwear. For her part, the young woman was so intoxicated she has no memory of what had occurred. But she was unconscious when the police officer came across the scene, leading the judge to state it is "unknown" when she had passed out, and she might just have agreed to sex with the driver, in his exalted opinion.
The young woman's blood alcohol level was tested at 223 and 244 milligrams of alcohol in100 millilitres of blood. Which, according to the testimony of an expert, would have meant she was sufficiently drunk to have no memory of events, and to have lost track of her surroundings. If the penalty for drunkenness is certain rape, perhaps Canadian justice could cite complete responsibility for rape lies with those careless enough to become intoxicated.
Or have they already done that?