Can a Drunk Consent to Sexual Activity?
We’ve all seen the headlines.
“Complaints are mounting against a Nova Scotia judge who said that “clearly a drunk can consent” as he acquitted a Halifax taxi driver of sexually assaulting an intoxicated passenger found partly naked and unconscious in the back of his cab.
Judge Gregory Lenehan found Bassam Al-Rawi, 40, not guilty Wednesday following a two-day trial in February in Halifax provincial court. The judge said some of what the court heard was “very disturbing” and “there’s no question” the woman was drunk.
“This does not mean, however, that an intoxicated person cannot give consent to sexual activity. Clearly, a drunk can consent,” he said.
The judge’s remarks have drawn criticism, and on Thursday two legal experts called them “dangerous.” One said Lenehan is delivering a message to the public that “it’s open season on incapacitated women.””
Here is the context of the remark that’s causing the uproar:
“A person would be incapable of giving consent if she is unconscious or is so intoxicated by alcohol or drugs as to be incapable of understanding or perceiving the situation that presents itself.
This does not mean, however, that an intoxicated person cannot give consent to sexual activity. Clearly, a drunk can consent.
As noted by … the forensic alcohol specialist, one of the effects of alcohol on the human body is an intent to reduce inhibitions and increases risk-taking behaviour. And this often leads to people agreeing, and to sometimes initiating, sexual encounters only to regret them later when they are sober.
In this case, there is no question (the complainant) was drunk when she was found in Mr. AL-Rawi’s taxi, and she was unconscious. Therefore at that moment, when Const. Thibault approached Mr. Al-Rawi’s vehicle, (the complainant) was in fact incapable of consenting to any sexual activity. That also means that whenever she did pass out, she would have been incapable.
What is unknown, however, is the moment (the complainant) lost consciousness. That is important.”
Ever since the 1999 Supreme Court of Canada decision in R. v. Ewanchuk, the law is clear that in order for any consent to sexual activity to be valid it must be affirmative and continuing. When the consent stops, then so must the activity. In other words, once ‘yes’ changes to ‘no’ or ‘no more’, then consent no longer exists and any further sexual activity become a sexual assault. This concept is the same for an assault as it is for sexual assault. Once the consent to contact is withdrawn, any further contact becomes criminal in nature.
Many people assume that Mr. Al-Rawi didn’t have proper consent and there is a chance he didn’t. What the judgement said is that the prosecutor was unable to prove beyond a reasonable doubt, as required by section 11(d) of the Charter of Rights and Freedoms, that the taxi driver was guilty of the offence of sexual assault.
Of course, there are other, troubling subtexts. What none of us wants to see is an open season of sexual attacks on women who are intoxicated. Moreover, a woman should feel that she is safe to take a taxi home when she (or her friends) feels that she has had too much to drink. Unsaid, is the vulnerability of the complainant who appeared to have been taken advantage of by a person whom she felt that she could trust. In my opinion, it is that violation of trust of the vulnerable woman that lies at the heart of the public outcry. On the other side of the issue, are taxi drivers who also feel that as a vulnerable group they are often wrongfully accused of a misdeed by patrons attempting to take advantage of them.
Any discussion must include an analysis about how to quantify how intoxicated is too intoxicated. Alcohol is an ingredient in many social encounters. To say that the presence of alcohol is per se enough to invalidate consent raises serious issues.
- Should the defendant be allowed to argue that because the complainant is an alcoholic and has a higher tolerance to alcohol her consent threshold is higher?
- What about the person who is too drunk to drive under the law? Would their consent to a search, to sign a contract or engage is sexual activity be valid?
- How much should a pre-existing relationship factor into the question?
- Should a greater level of intoxication be permitted where the individuals are already intimately involved?
- Where a person has some fiduciary duty to the complainant and consensual sex is permitted, should a higher standard be required?
- How much specificity in the level of intoxication should be required? And how should it be measured?
- What about the taxi, bus or über driver who has to deal with sexual taunts by an intoxicated patron attempting to avoid paying a fare? What steps should they be required to take to defend themselves against allegations of sexual predation?
- How much is too much alcohol in situations where the initial goal was to become intoxicated so as to reduce inhibitions and engage in sexual activity?
Professor Melanie Randall wrote an interesting exploration of the complexities of the issues: http://theequalityeffect.org/pdfs/ConsentPaperCanadaMR.pdf
The decision in R. v. Al-Rawi and the reaction to it, raises more questions than it answers. As a criminal case, the judge found that there was insufficient evidence to find Mr. Al-Rawi guilty of sexual assault beyond a reasonable doubt. In a civil case, on a balance of probabilities, the outcome may have been different. Criminal trials, where bad facts can make bad law, are not the best vehicle for a sober reflection of social policy. Yet, the case highlights the intensity of the debate. As the public outcry demonstrates, Canadian society is ripe for a thorough debate on the issues around sexual assault. Both the complainant and the accused have rights that require protection. The more guidance we can offer the prosecutors who must review the case, the defense lawyers who defend the accused and the judges who must decide the cases, the better our justice system serves Canadians.
H.J. Kalina is a criminal defence lawyer with the Law Office of Kalina & Tejpal. He can be reached at (416) 900-6999 or at firstname.lastname@example.org