A drunk clearly cannot consent

Judge Gregory Lenehan's comment that "clearly a drunk can consent" made during his decision in the February sexual assault trial of Bassam Al-Rawi is evidence that Canada's consent laws are failing sexual assault survivors.

The case in question involves an unnamed woman who was found naked in the back of Bassam Al-Rawi's taxicab in May 2015. The woman said she recalled little from the night as she was intoxicated. Her blood alcohol concentration was estimated at three times the legal limit for an impaired driver.

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Al-Rawi was seen trying to stuff the woman's underwear and pants between the front seat and the console, and the woman's DNA was found on his upper lip. At the time of his arrest, Al-Rawi's pants were undone and halfway down his buttocks.

Lenehan said the Crown was unable to prove a lack of consent and found Al-Rawi not guilty, thus perpetuating the misguided notion propping up rape culture that a drunk person can, in fact, consent.

Effects of alcohol complicate consent

The short-term effects of alcohol consumption include difficulty communicating clearly, lowered inhibitions, memory lapses and blackouts, and an inability to think and judge clearly.

The complainant's blood alcohol concentration of between 223 and 244 mg was about triple the minimum concentration that constitutes impaired driving: Nova Scotia drivers are considered impaired when they have 50-80 mg of alcohol in 100 ml of blood; the Criminal Code defines impaired driving as a blood alcohol concentration of more than 80 mg.

Our Criminal Code recognizes the effects of alcohol begin even when low amounts are consumed, and we punish those who disobey the law by driving when impaired.

If a person is considered too impaired to drive at a blood alcohol concentration of 80 mg, why does Lenehan deem a person with triple that concentration still capable of consenting to a stranger taking off her clothes?

Lenehan trivialized the incident, implying the woman was to blame when he said people sometimes agree to sexual encounters when drunk and then regret them later. This is clearly not a situation of mere regret. Regardless of whether she voiced consent in the moment, she was impaired to the point of passing out and therefore incapable of consent.

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Any utterances from a drunk person, whether or not they sound like consent on paper, should not be taken at face value. When a sober person considers engaging sexually with a person who has been drinking, the sober person must ensure the drinking person is of a sound mental state and capable of consent.

Al-Rawi was, as a taxi driver and sober person, in a position of trust over the woman who expected to be driven to her desired location without being harmed. The fact the taxi was found in the opposite direction from the woman's desired location was given little weight in Lenehan's decision.

Our Criminal Code states in subsection 273.1(2) that no consent is obtained "where the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority," but the possibility of Al-Rawi abusing his position of trust was ignored.

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Too much room for interpretation

We know alcohol is often involved in sexual assault cases (half, research suggests), and yet the only mention of intoxication in the Criminal Code states that self-induced intoxication leading to an incorrect belief of consent is not a defence for the accused.

Subsection 273.1(2) stipulates no consent is obtained "where the complainant is incapable of consenting to the activity," but the definition of "incapable" is left open to interpretation.

When harmful stereotypes come into play, such as the stereotype that drunk women are looking for sex, it becomes easier for legal decisions to be made that further victimize sexual assault survivors and protect perpetrators.

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Lenehan is not an outlier. Time and time again, law officials consider women less credible when they report assaults that occurred when they were drinking. Lapses in memory are used as evidence in saying there is no evidence.

In addition to public awareness campaigns surrounding consent, our laws need to reflect the effect of alcohol on conscious decision-making so officials have less room to interpret laws based on their own misogynistic stereotypes.

This column is part of CBC's Opinion section. For more information about this section, please read this editor's blog and our FAQ.