Nova Scotia Provincial Judge Gregory Lenehan could likely have been the judge had my daughter Rehtaeh Parsons' case gone to court as a sexual assault trial while she was alive. Watching what unfolded in a Halifax courtroom this week is how that trial would have ended.
The case in Halifax can be summed up like this: on May 22, 2015, a young woman, 26, clearly intoxicated, gets in a cab after drinking with friends, passes out and urinates in her pants. At 1:20 a.m., Halifax Regional Police officers testified they saw the cab and it appeared "suspicious." One of the officers said she could see an unconscious female lying in the backseat, wearing only a pink tank top pulled up over her breasts. Her clothes and belongings were spread around inside the cab.
The officers testified that the driver of the cab allegedly appeared to be trying to conceal the woman's underwear and noted that when he exited the cab, his pants were allegedly undone.
Bassam Al-Rawi was arrested at the scene and charged with sexual assault. This week he was acquitted of the charge when the Crown failed to prove beyond a reasonable doubt that the woman did not consent to sexual activity.
You'd think this was as winnable as a sexual assault case can get. She was unconscious. The direct witnesses to what happened are two Halifax police officers. So, how do you get from him being caught literally pulling up his pants to a finding of not guilty of sexual assault?
You turn "sexual assault" into "sex," add some alcohol, and spend the entire trial wondering if sex was or wasn't what she wanted.
The woman in Lenehan's case, due to her level of intoxication, remembers very little about the night. She can't even recall getting into the cab. Given that, how did Lenehan allow this case to become an issue of consent? Are we supposed to believe, for no reason, that the woman just happened to want to have sex with a complete stranger during a cab ride home?
Why did Judge Lenehan believe she was a willing participant in what happened at all? What made the starting point in this case consent and not the available evidence?
Alcohol and biased views did.
"Clearly, a drunk can consent."
-- Nova Scotia Provincial Judge Gregory Lenehan
The defence argued she consented but forgot because she was too intoxicated (BTW -- being too intoxicated makes a person unable to consent). That's how the case went, and it went there only because Lenehan was willing to first believe this young intoxicated woman wanted to have sex with pretty much anyone.
That's old-dog thinking, and it's right there in his ruling. Lenehan noted that intoxication tends to reduce inhibition and "increase risk-taking behaviour."
"This often leads to people agreeing and to sometimes initiate sexual encounters only to regret them later when they are sober," Lenehan said. You couldn't put victim blaming more blatantly in a courtroom like that if you used spray paint.
Lenehan stated that, "In testimony, [the woman] could not provide any information, any details on whether she agreed to be naked in the taxi or initiated any sexual activity. The Crown failed to produce any evidence of lack of consent at any time."
In other words, with no evidence either way with the exception of DNA and two police eyewitnesses, the case rested entirely on Lenehan's personal opinion of women and alcohol.
"Clearly, a drunk can consent," is how that ended. I've talked to kids in Grade 8 with a better grasp of consent than that.
There's no doubt the complainant was unconscious when she was found by police so at that moment she was unable to consent, Lenehan ruled -- but added that it's "important" to know exactly when she passed out.
No, what's important is finding out how Lenehan concluded she was consenting in the first place.
If sexual assault charges were laid in Rehtaeh's case while she was alive, that case may very well have ended up in Judge Lenehan's courtroom. I can't imagine how she'd react to a man sitting behind a bench telling her he's not sure when she stopped consenting to having sex with four boys she didn't even know while vomiting, and that as a result his verdict is a finding of not guilty.
When consent was allowed to be entered as a defence, as in the Halifax case, it opened a door to Lenehan's outdated myths and stereotypes about women and drinking. In order to rule in the defendant's favour, the judge first had to believe that an average, everyday 26-year-old Canadian woman would head downtown for a few drinks with friends and have sex with the cab driver right at the moment she passed out and peed her pants in what was supposed to be a safe ride home.
When it comes to an unconscious woman, despite this ridiculous ruling, consent can't be present.
The reality is she headed downtown with some friends and woke up in an ambulance.
Rehtaeh went to a sleepover and woke up suicidal.
Neither deserves, or would have deserved, their cases being influenced or judged by such an awful opinion of women.
A photograph of Rehtaeh being raped wasn't enough. Two police officers catching a man sexually assaulting an unconscious woman wasn't enough.
It isn't enough because these cases weren't judged based on the evidence, they were judged based on an outdated view of women and alcohol.
What happened in Halifax is but an example of what's wrong with our criminal justice system -- it turns "sexual assault" into "sex" and debates consent the entire trial while not once stopping to ask, "Does it make sense to anyone that this woman, in this state, would consent to having sex with anyone, let alone a total stranger?"
Judge Gregory Lenehan believed it made sense and, in essence, gave consent on a young woman's behalf to something she doesn't even remember.
Lenehan added that, "A lack of memory does not equate to a lack of consent."
A lack of memory does not equate to a lack of consent? Consent isn't about what's lacking, it's about what's present. When it comes to an unconscious woman, despite this ridiculous ruling, consent can't be present.
Kind of like how the Criminal Code of Canada says you can't give consent on behalf of someone else.
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