Last week many Nova Scotians shared outrage and concern at the outcome of the case where Judge Gregory Lenehan ruled in Halifax that Bassam Al-Rawi was not guilty of sexual assault.
By now, everyone has read the facts presented in the case as reported by the media.
The verdict turns, by the judge’s account, on the notion that an intoxicated person can give consent.
Many called for more training for judges. And that’s great of course. But that’s not how government and the legal system best work together. The idea is that government makes clear laws, supported by the people, which the legal system applies fairly and impartially as society demands.
We need governments to transform their laws and policies, firstly to prevent sexual violence, and secondly, if it does happen, to provide better access to justice for the victims.
Unless governments fix their laws on sexual assault and implement them effectively we are unlikely to see an end to the abuse of women and girls in our society.
Proving that the complainant did not consent and the defendant did not reasonably believe that the complainant consented, is the key issue in many rape cases. Section 273.1 (2) b) of the Criminal Code 1985 states that a person can not consent if they are incapable of consent.
The case at hand is an abject example of a complainant who is incapacitated by alcohol.
Committed and dedicated to protecting the survivors of sexual assault, Nova Scotia should call for consideration to amending the Canadian Sexual Assault Law to incorporate principles so that the impact of severe intoxication from substances including alcohol is embedded in the legislation. Though it might only be applicable in a few cases like the one in the media this week, a powerful social message would be established.
In practice, this would mean imposing an alcohol limit above which a person would be considered incapable of consenting.
As is now the practice, police would, when possible and where permission is given by victims, carry out blood tests on alleged rape victims to establish the level of alcohol in their bodies. They would then calculate how affected the person was at the time.
If judged to be drunk beyond the proscribed limit, the person would not be regarded as being able to consent to sex.
This would make it virtually impossible for a person accused of rape in this situation to claim they believed consent had been given.
Alcohol is among the most significant risk factors for sexual violence. Alcohol impairs a person's ability to provide consent. The level of that impairment can be scientifically measured and placed on a scale from 'no impairment' to 'incapable of consent'. It's a continuum. On this point we are all agreed and supported by law. But that’s where the support ends.
As the Canadian Press reported today, “At first glance, Canada's sexual assault law
appears to offer judges clear guidance on how to decide whether an alleged victim of sexual assault, under the influence of drugs or alcohol, could be capable of granting consent to sexual activity.
"The law says you cannot obtain valid consent from someone who is incapable of consent," says Elizabeth Sheehy, a law professor at University of Ottawa and an expert in sexual assault law.
But that's where many experts say the clarity ends — and the debate begins over the complex issue of intoxication and consent.”
Let's let science help.
Scientific management and decision-making have been hallmarks of the Progressive Movement for 100 years. Progressives were among the first to call for science in the courtroom. From breathalyzers to recordings and photographic evidence, and the radar gun, science has made justice more understandable and fair.
We are all now well familiar with the Breathalyzer scale. In the Nova Scotia case the woman had evidence-based blood alcohol level that would be classified as dangerously impaired. On this numbered and well-understood scale, where she is unconscious, incontinent, and suffers memory loss, the ability to give consent is also impaired to zero.
We can’t wish for a better past. But we can call for this to be fixed this right now.
From university campuses to the military and in the general public, people are looking for lawmaking here that sets limits and provides clarity. It was a big step in Canada and it took a lot of courage in 1969 when the Trudeau government set the 80 limit as a scientific test of impairment and made law based on that test. In hindsight it’s impossible to understand the controversy around the breathalyzer (originally known as the drunk-o-meter), or why it took over 30 years after the technology was proven to embed it in the legislation. That's the kind of courage we need now to give direction to a system of law hopelessly floundering. And one day, soon I hope, we’ll look back at why it’s taken another 50 years to bring science into the determination of consent.
An overhaul of the sexual assault laws should clarify a guideline that the ability to consent be accepted to be impaired inversely proportional to the same scale we use for impairment. Such a provision would send out a powerful social statement against the exploitation of women rendered incapable of providing free agreement in conditions of severe intoxication.
The impact should be obvious. It returns the responsibility to the place where the responsibility belongs. Like the drinker deciding when to not drive even if they don’t have a Breathalyzer in hand, the sexual participant accepts personal responsibility for not having sex with people who are intoxicated to the point where THE LAW SAYS consent cannot be given. This of course is only one of MANY filters the responsible person will use.
A BAC guideline range might look something like this:
This doesn’t solve everything.
It won’t help in every case. But when scientific evidence IS available and the law is left floundering we need to bring the two together to make a better society.
This is not an original idea. It's been discussed and supported in Europe and most recently in an expansive independent report led by Dame Elish Angiolini DBE QC to the UK government on the investigation and prosecution of rape. Note that in the UK and most of the rest of the world the crime of sexual assault is known as Rape.
Director of Public Prosecutions Alison Saunders said rape victims should no longer be ‘blamed’ by society if they are too drunk to consent or if they simply freeze in terror.
She has issued new guidance to police and prosecutors as part of a ‘toolkit’ to move investigations into the 21st century.
Read more: http://www.dailymail.co.uk/news/article-3108406/Courts-assume-women-t-consent-sex-drunk-Rape-report-s-controversial-proposal.html#ixzz4c54kCC1J
Here's the full report on the investigation and prosecution of rape in London and the proposal that in some cases a breathalyzer limit will help.
Writing about life, citizenship, and Nova Scotia.