In a draft paper submitted to Canadian Bar Review, Dalhousie law professor Elaine Craig says Judge Gregory Lenehan deserved much of the widespread backlash he received following the acquittal of taxi driver Bassam Al-Rawi in March.
While falling short of judicial misconduct, Craig contends the Nova Scotia provincial judge erred in his assessment of the case, but also suggests that the Crown and defence lawyers must share responsibility for allowing "legally rejected'' stereotypes to seep into the courtroom unchallenged.
Al-Rawi, 40, was charged after police found the woman, in her 20s, passed out and partially naked in his car in the early hours of May 23, 2015.
Demonstrators protest Judge Gregory Lenehan's decision to acquit a Halifax taxi driver charged with sexual assault during a rally in Halifax on March 7, 2017. (Photo: Darren Calabrese/Canadian Press)
"Judge Lenehan's speculation, implausible conclusions and legally incorrect reasoning were informed by the stereotype that unchaste women, or promiscuous party girls, will consent to sex with anyone,'' writes Craig. "How could such a pornographic, hypersexualized account of human female behaviour arise in a legal proceeding in 2017?''
Craig says Lenehan overlooked substantial circumstantial evidence suggesting that the woman did not consent to sexual activity with Al-Rawi.
During Al-Rawi's trial in December and January, a police constable testified that she saw Al-Rawi shoving the woman's urine-soaked pants and underwear between the front seats.
"How could such a pornographic, hypersexualized account of human female behaviour arise in a legal proceeding in 2017?''
At the time of his arrest, Al-Rawi's seat was partially reclined and the woman's legs were resting on the back of the front bucket seats.
Al-Rawi's pants were undone at the waist and his zipper was down a couple of inches, the officer said. Evidence of the woman's DNA was found on Al-Rawi's upper lip, but the origin of the bodily fluid couldn't be identified.
Craig suggests the judge may have been influenced by defence lawyer Luke Craggs' suggestion that the woman becomes a different "type of person'' when she consumes large quantities of alcohol, including invoking Jekyll and Hyde to contrast the woman's behaviour in her drunk and sober states.
A demonstrator protests Judge Gregory Lenehan's decision to acquit a taxi driver charged with sexual assault during a rally in Halifax on March 7, 2017.
"The inference (Craggs) invited Judge Lenehan to draw was that the complainant is a woman transformed by the consumption of alcohol into an irrational, uninhibited person, who might quite imaginably enter the taxi of an unknown man, and immediately (or almost) remove her clothing, throw her shoes, urine soaked pants and underwear at him, and perhaps kiss or lick his face,'' says Craig. "The logic of this stereotype turns on the assumption that drunk women will have sex with anyone, anywhere, any time.''
Lawyer submitted inadmissible evidence about complainant's history
Craggs submitted evidence at trial suggesting the woman was acting flirtatious at a bar before the alleged incident took place, which Craig says should have been ruled inadmissible under a section of Canada's Criminal Code that bans using a person's sexual history to draw inferences about his or her willingness to consent. The evidence was not flagged by the judge or Crown, says Craig.
Craig suggests reforms such as mandatory sexual assault training for judges. She says judges should also be required to release written decisions in sexual assault cases to increase transparency and possibly avoid "carelessly worded'' statements, like Lenehan's blunt assertion in his 20-minute oral decision that "a drunk can consent.''
The Crown has said it will appeal the case on the grounds that Lenehan made multiple legal mistakes in his ruling, including that he engaged in speculation about consent rather than drawing inferences from the facts proven in evidence.
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