Calls are mounting for the removal of a Canadian provincial judge who told a courtroom “clearly, a drunk can consent”, before acquitting a taxi driver accused of sexually assaulting a female passenger who was found half-naked and unconscious in his cab.
The ruling by Judge Gregory Lenehan in Nova Scotia attracted widespread condemnation after it was handed down last week. Dozens of sexual assault centres and advocates for survivors of sexual violence joined forces to file a formal complaint, while others wrote letters demanding a judicial review.
More than 35,000 people have signed an online petition calling for his removal from the bench, and two marches are being planned in the east coast province.
In 2015 a police officer found an intoxicated, unconscious woman in her 20s in the back of a parked taxi, the court heard. She was naked from the chest down and had urinated on herself. The driver, Bassam al-Rawi, was found holding her trousers and underwear, and was arrested.
Forensic testing revealed the 40-year-old had the woman’s DNA on his upper lip and police said his trousers had been pulled partly down and his zipper was undone.
The complainant, whose identity is protected by a publication ban, told the court she had no recollection of the incident. She remembered consuming three drinks at a downtown bar – two shots of tequila and a mixed drink – but did not recall being denied re-entry to the same bar later that night or hailing a cab. Tests had shown her alcohol level was nearly three times the legal limit for driving.
After a two-day trial in February, the judge acquitted Rawi last Wednesday. Lenehan said that while there was no question the woman was drunk, and noted that this was not “somebody I would want my daughter driving with, nor any other young woman”, he said his decision hinged on whether she had given her consent prior to passing out.
“A person will 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,” the judge said, according to a transcript published by the Canadian Broadcasting Corporation. “This does not mean, however, that an intoxicated person cannot give consent to sexual activity. Clearly, a drunk can consent.”
He said the crown failed to offer evidence suggesting the complainant could not or had not agreed to sexual activity. “A lack of memory does not equate to a lack of consent.”
His comments – along with the acquittal – set off a firestorm of criticism.
“When the victim was highly intoxicated, where her blood level was three times the legal limit of the level for driving, and where she was found to be unconscious in the back seat of a taxi, and where she had been turned away from a bar earlier in the evening because she was too intoxicated – clearly she was incapable of consent,” said Lucille Harper, of the Antigonish Women’s Resource Centre and Sexual Assault Services.
Despite being one of Canada’s most prevalent crimes, sexual violence is also one of the most under-reported and among the most difficult on which to obtain a conviction.
Harper said she was worried that the ruling would discourage others from coming forward. “The messages out there are clear to survivors of sexualised violence: if you come forward, the likelihood of you being believed and the likelihood of you seeing justice through the courts is very low.”
Canada’s legal system and its ability to deal with sexual assault was already under heightened public scrutiny, said Elizabeth Sheehy, a law professor at the University of Ottawa.
The high-profile trial, and subsequent acquittal, of the former CBC radio star Jian Ghomeshi revealed how survivors of sexual violence were treated in the courtroom, while a judge in Alberta was facing removal from the bench after he asked a complainant in a rape trial: “Why couldn’t you just keep your knees together?”
Sheehy described the acquittal as an extreme example but not uncommon. The Nova Scotia decision sent the message that “it is open season on incapacitated women”, she said.
