We've heard it before: teenagers are drinking at a party, a girl is taken advantage of, someone records the whole thing, then posts it online to extend the humiliation exponentially. It's the structure of the tragic Rehtaeh Parsons story, and unfortunately, another case that fits this template has surfaced in Halifax barely two months after Rehtaeh's death in April.
According to the mother of a 15-year-old-girl living in Dartmouth, Nova Scotia, her daughter went to an "all you can drink party" where she got so drunk she could "barely walk." The girl says she was "dragged outside" by several boys and performed oral sex on one of them, while another filmed it all happening. The mother of the girl is saying it's sexual assault, but the only kid getting charged is the boy who filmed and posted the video, who is facing a count of making and distributing child porn. He turned himself in.
The mother has also said that her daughter, who is facing harassment from her peers after becoming "Facebook Famous" for the video of her at the party has stopped going to school and stays out late, shoplifting, her mom says. Clearly she is trying to cause a bunch of noise about this issue now to try and prevent any further damage from occurring to her daughter's life.
Since April, the federal and provincial government have been taking steps to make amendments to the law so these situations don't happen again. But are they being enacted quickly enough?
This recent case shows us that no, they're not. Democracy is a slow process. In April, the federal government asked that priority be taken on the review of cyberbullying laws, and that it be prepared by sometime in June. It shouldn't take a legal mastermind to conclude that it should be illegal to take an illicit photograph of someone without his or her consent, and hopefully that's what the federal review of the Criminal Code will conclude.
The Nova Scotia government has moved much quicker than their federal counterparts. In May, the Justice Department pushed the Cyber Safety Act (CSA) through legislation, although its date of proclamation has yet to be determined. The Act is the first of its kind in the province, and it aims to create an investigative unit whom people can call for immediate action against online bullying. Whenever it actually exists, it will supposedly be able to stop an accused party from online communication or confiscate their computers and phones. This also means a victim can go to civil court with charges.
It's too bad this law wasn't enacted already. Wayne MacKay, a Dalhousie University law professor, says the 14-year-old in this recent case would likely be charged under the CSA if it was already in place. But it's not, and instead a child is being charged for making child pornography; which is a little odd. His alleged actions are still reprehensible, but the language of his charge doesn't seem to adequately describe the crime -- the child pornography act was meant to protect minors from adults.
When he goes to court later this month, he could get off without any charges depending on his defense. "There's a couple of possibilities," MacKay explained to me over the phone. "He's not really in any way a threat to other people in the way that maybe child pornographers would be seen as a threat." But, Mackay admits it's a tough argument to make. Instead, he could argue that it wasn't child pornography, "which would lead to defining what is child pornography mostly because, pretty clearly by his age, he was a child.
However, this recent case, like many before it, isn't just about the consent to being photographed during sexual acts; they're also about consenting to the sex act in the first place. That, for whatever reason, is something that is being underplayed in this latest story. A Halifax Police spokesperson said the sexual act that was recorded was consensual -- something they determined after interviewing people involved.
OK, but that raises another question: when so much alcohol is involved that a girl can barely walk, how can she consent? The young girl's mother says when she picked her daughter up from the party she was barely able to walk. The question raised in a case, if this investigation was reopened, would be to measure her intoxication. "Was the person so intoxicated as to not properly understand or be able to inform a consent with the knowledge of what that would entail?" asked MacKay. Consent is an iffy subject legally because it can be hard to prove, but in the case of this young girl who was allegedly too drunk to walk, the situation does not seem too fuzzy. And yet, the problem of determining consent is the reason why the boys who are suspected to have sexually assaulted Rehtaeh Parsons have not been charged. Halifax Police say they are still investigating that case, but the media relation's officer had nothing to add to about the investigation when called.
MacKay says the girl could alternatively file a human rights complaint saying the posting of the video, based on her gender and sex, was discriminatory and harassment. "In Australia that's a fairly major response to cyberbullying: to deal with it through a human rights complaint process."
So where do we go from here? If laws are too slow to come into effect, what options are there while we sit in limbo? The federal government announced this week that monetary support would be given to the Red Cross to develop a youth-led anti-bullying program across the country. The Nova Scotia government gave a Halifax sexual assault centre $100,000 in May when the centre said they've had double the requests for counseling and 50 per cent increase in phone calls after the Rehtaeh's story came to light.
More support in these services is certainly a good sign. In the meantime, however, the media is vital in making sure the case of this most recent Halifax case doesn't get thrown to the side, and that the justice system doesn't fail this girl like they failed Rehtaeh Parsons.
Want to talk about it? Tweet Ken Wallingford: @kjrwall
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