Rape Trial In Which Complainant Was Blackout Drunk Raises Questions About Consent

The footage, viewed in a Toronto courtroom this week and obtained by CityNews, paints a picture of a woman who appears to be very drunk.

She starts the night off at a club called Lost and Found and moves onto the Everleigh, where a man grabs her, and pours vodka down her throat, slaps her ass. Later he helps her down the stairs, which is clearly a struggle for her. They go into the Thompson hotel—where her friends were—but instead of meeting them, the man checks them into a room. More surveillance tapes show that she "is practically asleep" during an elevator ride, in Crown Jill Witkin's words.

The complainant, whose identity is protected by a publication ban, wakes up in the morning and "when she realizes where she is, she says she feels violated, feels like someone penetrated her. She is emotional and upset and goes to the police that same day," Witkin told a judge in her closing statement.

While alcohol is a factor in many sex assault trials, this case is unique in that the footage, taken throughout the night on July 18, 2015, seems to clearly document that the complainant was intoxicated—something the judge even noted at trial. Her alleged attacker, Moazzam Tariq, 31, a man she literally met a half hour before he checked them into a hotel room, at least seems to be much more sober.

Defence attorney Danielle Robitaille—who helped defend Jian Ghomeshi—argued that because the woman displayed other signs of cognitive function, including holding onto her purse and phone and pulling up her pants, it's entirely possible she was able to give consent.

"There could be a number of explanations for why she looks so sleepy in that elevator," Robitaille told the court. "Conscious, capable adults are allowed to look a little sleepy, before they engage in sex." She also said the complainant's inability to produce details in the "flash memory" calls the entire memory into question.

Louis Francescutti, a professor at the University of Alberta's School of Public Health and emergency room doctor, said it's not uncommon for patients to come in after having been blacked out and report that they've been sexually assaulted.

"A lot of these victims wake up and things hurt where they're not supposed to hurt."

A blackout, he told VICE, is different from passing out due to drinking too much. A person can be blacked out and still be walking and talking, but be cognitively impaired to the point where the part of the brain that forms short term memories shuts down.

"Some people become very quiet and withdrawn. Some people become an exhibitionist or really crazy—and those are the people you see urinating in memorials or stripping and going into a water fountain at night," Francescutti told VICE. "When you hear those stories you're going 'What the fuck were they thinking?' Well they weren't thinking, they were in a different world."

He said the patients who wake up in the emergency room typically "don't know what the hell happened."

"They have no clue why they're in the hospital."

Legally speaking, there are different opinions on the laws around drinking and consent.

Barb MacQuarrie, community director for Western University's Centre for Research & Education on Violence against Women & Children, said under Canadian law, one cannot consent to sex if they are drunk. In Tariq's case, "this is such a clear cut and dry case of obviously she was intoxicated and incapable of giving consent," she said.

MacQuarrie noted the complainant's behaviour in the video doesn't prove she was functioning cognitively. "Most people when they're intoxicated can still pull up their pants and hold up their phone," she said.

As for Robitaille's arguments—that the complainant might have been alert enough to consent and that her memory shouldn't be trusted—MacQuarrie said they seem contradictory.

"If she doesn't have a clear enough memory to know if she gave consent that means she was too intoxicated."

Ottawa-based criminal lawyer Michael Spratt told VICE that in fact you can give consent after you've been drinking.

"You consent to many things when intoxicated. That doesn't preclude you from making decisions," he said.

"The real analysis that comes out in court is: Is the person so intoxicated that they are unable to consent to certain actions? Because we do recognize that if you are still intoxicated you are unable to make rational decisions."

That line can be tough to prove, but that's where the video evidence in this trial will come into play, he said.

"There is evidence of her displaying very obvious signs of extreme drunkenness," he said, citing factors like woman's difficulty walking, the fact that she blew off friends, the fact that she was with a man she'd never met before, and her inability to remember most of the night, except for saying 'no' at one point.

He also pointed out that Tariq appears to be more sober than the woman—and even pours booze down her throat, suggesting that he knew how drunk she was.

"If your argument is she may well have consented and just been too drunk to remember consenting that seems to be a pretty powerful indicator that… she may have been too drunk to consent."

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