Nova Scotia’s Public Prosecution Service has announced it will appeal a judge’s controversial ruling in a sexual assault case that drew protesters to the streets in Halifax on Tuesday and spurred criminal lawyers to the judge’s defense.
Around 300 to 500 protesters gathered in a public square in downtown Halifax carrying signs declaring “I believe you” and “fuck rapists” following Judge Gregory Lenehan’s acquittal on March 1 of a taxi driver who was accused of sexually assaulting his passenger.
In the early hours of May 23, 2015, a police officer found the complainant naked from her chest down and unconscious in the back of Bassam Al-Rawi’s cab, while the driver was in the reclined front seat with his pants undone. The officer testified that he saw Al-Rawi attempt to hide the woman’s urine-soaked pants and underwear between the front seat and console. Her blood alcohol was between 223 and 244 milligrams in 100 millilitres of blood. The complainant’s DNA was on Al-Rawi’s upper lip. He had driven the passenger south, in the opposite direction of her address, which would have taken them north. The officer found the cab stopped in Halifax’s south end.
In his decision, Judge Lenehan said he “struggled to determine what all of this evidence proves.”
“A person will 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. This does not mean, however, that an intoxicated person cannot give consent to sexual activity. Clearly a drunk can consent,” he said in his decision.
“Clearly a drunk can consent.”
He said when she did pass out she would have been incapable of consenting, but that it was unknown when exactly she did pass out. “That’s important because it would appear that prior to that, she had been able to communicate with others,” he said, referring to her texts to friends.
But the Crown believes it has several grounds on which to appeal the judge’s findings, including that he had engaged in speculation on the issue of consent rather than drawing inferences from the facts proven in evidence, that he erred in his application of the legal test for capacity to consent, and had failed to determine whether the accused had taken all reasonable steps to make sure the complainant was consenting.
Chrissy Merrigan, who helped organize the protest, was happy to hear the news of the appeal, which was one of the protest’s demands.
“This ruling was so sickening. It hit all of us in such a hard way.”
“This ruling was so sickening. It hit all of us in such a hard way,” Merrigan told VICE News. “I’m not a lawyer, I’m not part of the legal system, but I feel like we failed [the complainant], so this is all we can do to try to make some noise for her.”
Merrigan and others are also asking for an official inquiry into Judge Lenehan because they view his decision as part of a pattern.
In November 2015, Judge Lenehan told a mother not to breastfeed her baby in his courtroom, though the Nova Scotia Human Rights Act protects a woman’s right to breastfeed in public. And in January 2015, he handed 12 months probation to a man who texted a photo of himself that showed him penetrating Rehtaeh Parsons while she vomited. After the photo went viral amongst her peers, Parsons committed suicide, prompting international media coverage and heated debate locally about sexual assault and the justice system.
“If we’re wrong [about Judge Lenehan], show us,” Merrigan said.
The Nova Scotia Criminal Lawyers Association has come to the judge’s defense, saying in a statement released on the weekend that criticism about his partiality, competence, qualifications, and previous cases “is unfounded and undermines the discussion that is needed to address the prevention of sexual assault.”
Since Merrigan began organizing the protest, other women have reached out to share their stories of sexual assault, something she says she has also experienced.
Questions about the judge’s partiality, competence, qualifications, and previous cases “is unfounded and undermines the discussion that is needed to address the prevention of sexual assault.”
“I’ve had a couple instances in my life where I’ve been assaulted but I didn’t feel it was enough of an assault to do anything about it,” she said, describing one occasion in which a man pressured her into having sex after they went on a date. “He kept going, come on come on come on, and I felt like I couldn’t say no after saying no five times, so I said yes, and I left my body, I was not present during that.”
Merrigan considers the latest ruling to be proof that not much has changed since Rehtaeh’s death in 2013.
“We’re still being told it’s our fault, we’re still being told it’s on us to be safe. …It’s always on the woman, and it’s still like that in Halifax,” she said. “This ruling is just throwing it in our face that we’re not moving forward.”