How Drunk Is Too Drunk? Consent In Sexual Assault Cases

Posted by  on March 28, 2017
How Drunk Is Too Drunk? Consent In Sexual Assault Cases

Can a drunk person consent to sex? It happens all the time. Every night, in bars and nightclubs and pool halls, men and women drink and socialize and “hook up”. Alcohol and drugs are a social lubricant, a dis-inhibitor, something that sets the occasion apart from the everyday. But taken too far, they deprive one of common sense, judgment, willpower, and even physical mobility. In such a situation, a person might agree to sex, but such consent might not be voluntary.

Where does one draw the line? The threshold between being “buzzed”, and being too drunk or stoned to consent, is a tricky one, fraught with danger to both parties. Police and criminal courts are regularly tasked with determining where that line is in a particular situation, and whether that line was crossed. Complicating matters, there are usually only two people who know what really happened, and, in situations where a lot of alcohol or drugs were involved, there might be a loss of memory as well.

A person’s ability to consent to sexual acts can be severely diminished once they are heavily intoxicated. Some people are able to function and make decisions even when they are highly intoxicated; some cannot.

The capacity to consent while intoxicated was the central issue in a recent case decided by a Nova Scotia judge who acquitted a taxi cab driver of sexual assault of an unconscious woman found half-naked in his cab. In his ruling, Justice Lenehan asserted that there was no question as to whether the complainant consented while unconscious. It is well understood that a person is incapable of giving consent when they are unconscious or so intoxicated that they are unable to understand or perceive the situation before them. On the other hand, it was unclear in that case whether she provided consent before she blacked out. According to Justice Lenehan, “clearly, a drunk can consent”. This very poorly-worded statement has come under intense heat amongst academics, the public and social media.

At the time of the incident, the complainant’s blood alcohol level was 223 to 244 milligrams in 100ml of blood. That is a very high level of intoxication (the legal limit is 80 mg percent). However, a forensic alcohol specialist testified that this level of intoxication may have allowed the complainant to direct, agree, ask and consent to a variety of different activities. Although she did not have a memory of consenting to any sexual conduct, let alone even hailing down a cab, a lack of memory, for Justice Lenehan, did not equate to a lack of consent.

It is important to remember that it is the Crown that had to prove lack of consent, and to a very high standard: proof beyond a reasonable doubt. That is a standard of near-certainty. What a member of the public might think is a common-sense determination, becomes much more difficult to conclude when the high threshold for criminal guilt is applied.

On the night in question, the complainant had gone drinking with a couple of friends. Bouncers prevented her from re-entering the bar because she was drunk. Moreover, she could not recall the conversation she had with her friends about going home alone in the taxi. All of these communications were recorded via text message. The forensic alcohol specialist testified that at the complainant’s level of intoxication, she may have carried out various interactions; such as texting her friends and flagging down a cab, without having a specific memory of those events. Nevertheless, this explanation does little to help determine whether the complainant fully understood and appreciated the nature and extent of the exchanges that took place within the cab.

The police had proper grounds to make the arrest at the moment that they arrived on the scene. The complainant’s underwear was soaked in urine and in the hands of the accused when the officer arrived at the scene. The complainant’s DNA was found on the accused’s upper lip. Furthermore, the complainant’s position in the cab was also a point of concern – her legs were propped up on the front seat. The accused’s pants were also undone, and the complainant’s sandals were found on the floor under the accused’s feet in the driver’s compartment. These signs would lead the reasonable person to believe that the accused had or planned to engage in sexual conduct with a person who was unconscious and therefore unable to consent. But was she sufficiently in control of her faculties earlier on, at the time she supposedly consented?

As mentioned earlier, it is up to the Crown to prove that the complainant could not or did not consent to sexual activity with the accused. In this case, the judge found that the evidence did not prove beyond a reasonable doubt that the accused was guilty of sexual assault.

The decision of Judge Lenehan is currently under appeal.

Intoxication may lead some people to agree to and initiate sexual conduct, which they later regret when they are sober. Alcohol and drugs have the effect of lowering inhibitions and increasing one’s likelihood of engaging in risky behaviour. However, this possibility should not be used as a shield by perpetrators of sexual assault to protect them against criminal prosecution. In this case, the complainant was so drunk that she urinated herself and was found unconscious in the back of a cab. It is hard to believe that, in this state, she was able to provide informed consent to anyone a few minutes earlier when the sex began. An individual does not need to be passed out in order to not fully comprehend their situation. Although there is no clear line as to when intoxication abolishes the possibility of consent, people who are thinking about sex with someone who is drunk or stoned should err on the side of caution. Justice Lenehan stated in his judgement stated that the accused was “not somebody I would want my daughter driving with or any other young woman”. Despite these remarks, the accused was acquitted, because it did not meet the “near-certainty” threshold for a conviction.

The very high standard required before a person can be found criminally guilty is a time-tested, constitutionally-protected standard. It is a fundamental right because it limits wrongful convictions. And in our free and democratic society, it is better to err on the side of finding a defendant Not Guilty, than of stripping him of his liberty by mistake. Having said that, however, unless the public has confidence in the justice system, it risks being undermined or changed by politicians heeding the whims of the voters. To that extent, a case like this one is dangerous. The facts are egregious and call out for review. The public is rightfully indignant. Politicians, stung by criticism about the failure of the justice system to recognize and respect victims of sexual violence, are quick to seize upon a case like this to demand change. Those changes can have consequences that are unforeseen and regrettable. The adage that “bad facts make bad law” is completely on point here.

The best course of action in this case is to let the appeal court decide whether Justice Lenehan was wrong before considering further action. Judges are human, and sometimes they make mistakes. That is why there are several layers of appeal courts standing by to correct them. Most of the time, that system works. Let the appeals courts do their job in this case, then re-assess the situation.

Human relations are complicated. That is never going to change. Laws can and should reflect society’s views and progress; but it should not be a zero-sum exercise where gains in one area are won at the expense of another.

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Arun S. Maini, lawyer and founder of The Defence Group, has practised criminal law since 1995. He’s a graduate of the University of Toronto and Dalhousie University Law School. After completing his articles at a Bay St. law firm, Mr. Maini joined the federal Department of Justice as a prosecutor of drug trafficking, tax evasion, and immigration fraud cases in Toronto, Brampton and Vancouver. In 1999, Mr. Maini transferred to the provincial Crown attorney’s office in Brampton, where he prosecuted a wide range of criminal offences, from theft to murder. In 2003, Mr. Maini left the government to establish The Defence Group. Mr. Maini handles all criminal offences and regulatory prosecutions.

Over more than 25 years as a criminal lawyer, Mr. Maini has prosecuted and defended hundreds of criminal cases, and has extensive jury trial experience. Mr. Maini has also lectured at The Advocates’ Society and has taught advocacy at the Law Society and Osgoode Hall Law School’s Intensive Trial Advocacy program. Maini appears occasionally in the media to comment on criminal law – see examples from the CBC, the Toronto Star, and the National Post.

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