A Halifax judge has sparked outrage across Nova Scotia after ruling that a taxi driver—found by police in the backseat of his cab with an unconscious woman who was naked from the breasts down—could not be charged with rape because there’s no way of determining whether or not the victim, highly intoxicated at the time, consented before passing out.
“Clearly, a drunk can consent,” Judge Gregory E. Lenehan, handing down his not guilty ruling on driver Bassam Al-Rawi, told the courtroom Wednesday.
The complainant says she has no recollection of the events that occurred in Al-Rawi’s cab, but according to Canada’s National Post:
Lenehan said, while was she unconscious when Constable Monia Thibault found her, and therefore unable to consent, the judge said it is “unknown” when she passed out, and “this is important” as she may have consented to the encounter before losing consciousness.
He acknowledged that 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,” Lenehan said. “Clearly a drunk can consent.”
Lenehan graciously conceded that Al-Rawi, who was found holding the complainant’s urine soaked tights and underwear, “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.”
Still, he declared, it was impossible to know if the woman, whose blood alcohol level was around .2, had consented to sex prior to losing consciousness.
But, as many activists have been quick to point out, consciousness does not equal capability to consent.
“You can’t consent if you lack capacity and to equate incapacity with unconsciousness is wrong,” Dalhousie University associate professor of law, Elaine Craig, tells the National Post. “Lack of capacity presumably begins at some point prior to unconsciousness.”
Nova Scotia’s Community Services Minister, Joanne Bernard, has also spoken out against the ruling and Judge Lenehan’s logic.
“It’s so discouraging for me to stand here in 2017 and worry about the message that this decision sends to victims of sexual violence, and also to have to reiterate that a drunk ‘yes’ is a big ‘no,’” Bernard told CBC News. “...Clearly, clearly there’s lots of work to be done.”
Advocates for sexual assault victims plan to rally in protest against Judge Lenehan on March 7, a day before International Women’s Day and the “A Day Without Women” strike. According to the Facebook event invitation, the rally will take place at the Halifax Grand Parade. Those who cannot attend have been encouraged to call Judge Lenehan’s office and write letters of complaint to the Nova Scotia Provincial Courts.
Meanwhile, Crown Attorney’s office (the Canadian equivalent of the District Attorney’s office) is considering filing an appeal.
NOTE: Minor details have been corrected in this story to more accurately reflect roles in the Canadian government.