‘A Drunk Can Consent’: Judge's Ruling in Sexual Assault Case Sparks Outrage

By Bryan Le 03/06/17

The judge stated that it was possible that the drunk, unconscious woman provided consent to her taxicab driver prior to passing out.

Judge strikes gavel.
How drunk is too drunk to consent?

A Canadian judge is under fire for a recent sexual assault ruling that some believe may send a message that sexual violence is acceptable if a person is under the influence. 

Last week, Justice Gregory Lenehan found taxi driver Bassam al-Rawi not guilty of the sexual assault of a drunk, unconscious 26-year-old woman in the back of his taxi.

At the start of the 2015 incident, the woman got into al-Rawi’s cab around 1:09 in the morning. At 1:20, police responding to a different incident in the area happened to notice the woman and al-Rawi in the cab. She was unconscious, partially naked and had urinated on herself. The cab driver was found with his pants down and holding her tights and underwear. The woman says she has no recollection of the event and by extension, her legal representatives argue, was unable to give consent.

Lenehan, the presiding Novia Scotia judge, didn’t buy the argument, stating that she could have given consent prior to passing out.

“Once he saw she had peed her pants, he knew she was quite drunk. He knew going along with any flirtation on her part involved him taking advantage of a vulnerable person,” the judge said. “The Crown failed to produce any evidence of lack of consent at any time when Mr. Al-Rawi was touching [her]. A lack of memory does not equate to a lack of consent.”

Under Canadian law, a person cannot consent to sex while unconscious, but the law does not define how drunk is too drunk to lucidly provide consent.

"A person would be incapable of giving consent if she is unconscious or is so intoxicated by alcohol or drugs as to be incapable of understanding or perceiving the situation that presents itself," Justice Lenehan said. "This does not mean, however, that an intoxicated person cannot give consent to sexual activity. Clearly, a drunk can consent."

The ruling has sparked criticism from the public and some outspoken experts.

"Where is the line between capacity and incapacity when it comes to consent?" says University of Ottowa law professor Elizabeth Sheehy. "Surely, the line is crossed sometime before someone is actually unconscious."

Elaine Craig, an associate professor of law at Dalhousie University, also finds the ruling troubling: “I think we should be concerned when a trial judge in a sexual assault case refers to a complainant as ‘a drunk.’”

Al-Rawi has previously been accused of sexual assault on another drunk woman—as well as refusing to drop off yet another woman, allegedly asking her to stay, grabbing her hand and calling her “baby.” He has been barred from driving a taxi since the 2015 incident. 

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Bryan Le grew up in the 90's, so the Internet is practically his third parent. This combined with a love for journalism led him to The Fix. When he isn't fulfilling his duties as Editorial Coordinator, he's obsessing over fancy keyboards he can't justify buying. Find Bryan on LinkedIn or Twitter