After acquitting a Halifax cab driver of sexual assault, Justice Greg Lenehan said, “clearly a drunk can consent.”
A Nova Scotia cabbie was acquitted for sexual assault on Wednesday and women's rights advocates are calling for the judge who made the decision—he also oversaw the Rehtaeh Parsons case—to be reprimanded.
In May of 2015, police found Halifax taxi driver Bassam Al-Rawi sitting with his pants undone, trying to stuff a woman's underwear and pants between his seat and the driver's console, with her passed out in the back of his taxi. Her legs were propped up on the backs of the front seats; her black wedge sandals were near al Rawi's seat. It was 1:20 in the morning. She was so drunk that she urinated herself. Later, results from a forensics lab would show that he had her DNA on his mouth.
Al-Rawi's defense attorney said in trial that al Rawi probably unbuttoned his pants so he could be comfortable, and that the DNA results could have been innocuous. In his decision, Justice Greg Lenehan said he believed that Al-Rawi took the pants off the woman and pulled them over her legs, "but I do not know if he removed [her] pants … at her request, with her consent, without her consent — I don't know."
Lenehan said while it was true that the woman had passed out, he didn't know when she passed out and whether she consented to sexual activity before going unconscious, so he didn't know if any nonconsensual activity actually took place. And because Al-Rawi was not seen by police touching the woman when she was unconscious, any evidence was only circumstantial.
"Clearly a drunk can consent," Lenehan said, responding to prosecutors who said that the complainant was too intoxicated to agree to sexual contact. Lenehan went on to paraphrase an alcohol specialist who spoke during the trial, saying that alcohol reduces "inhibitions" and "increases risk-taking behaviour."
"This often leads to people agreeing or in some cases initiating sexual encounters," he added, "only to regret them later."
Read More: 'Keep Your Knees Together' Judge Needs to Go
The statement has caused an uproar with advocates who say sexual assault isn't taken seriously.
"It sickened me, honestly," says Glen Canning, who became an advocate to stop sexual violence after his daughter, Rehtaeh Parsons, took her own life. "Now the woman can be unconscious and you can say, 'She was just awake a second ago?' That's beyond fucked up."
Parsons, who was a high school student in a Halifax suburb, committed suicide after months of harassment. The abuse started when a photo circulated of a teen, giving a thumbs up to the camera, pressing his groin into her body at party—both were naked from the waist down, say reports—while she vomited out a window.
Justice Lenehan sentenced two males involved in Parsons' case, too. The boy in the photo and the boy who took the photo can't be named as they were juveniles at the time. The former pled guilty to distributing child pornography; the latter pled guilty to making child pornography. The Crown never prosecuted the men for sexual assault.
In line with the recommendations of prosecutors, and pointing to the Youth Criminal Justice Act which focuses on rehabilitation, Lenehan gave out no jail time to either man. One got a conditional discharge, and the other got a year of probation.
Canning told VICE that at the time, the sentences felt just. He knew that prosecutors hadn't pressed for more serious charges, and he was vindicated to hear the men admit their guilt.
"People hand you a dandelion, you pretend it's a rose. You're just happy to get something out of this whole mess at least," he said.
Nonetheless, in response to the acquittal this week, Canning says he wants to see Lenehan's conduct looked into.
"I've always wondered — if there were charges for sexual assault laid in Rehtaeh's case — what the outcome would have been," says Canning. "Now I know. Because Rehtaeh was intoxicated too. God, that hurts."
"I want a Robin Camp situation," Ottawa activist Julie LaLonde told VICE.
LaLonde is referring to the Alberta judge who, while presiding over a rape trial, asked a woman, "Why couldn't you keep your knees together?" Camp also repeatedly referred to her as "the accused" when she was the complainant. As of late February, the Canadian Judicial Council was deliberating over whether to recommend Camp be removed from the bench because of his remarks.
Legal experts say it's very rare for judges to be removed—and that's seen as a good thing for the justice system.
"Judges can't be fearful if they make an unpopular decision," says Jennifer Llewelyn, a law professor at Dalhousie University in Halifax. "There are significant protections … so they can't fear removal."
Judges aren't subject to complaints over the legal basis of their decisions themselves—those have to be dealt with in an appeal. But they can face complaints over their conduct "if they're concerned there has been some breach of judicial ethics."
The process for removing a provincial judge in Nova Scotia starts with a complaint to the province's Chief Justice. She can dismiss the complaint if it is "vexatious, frivolous, or questions the decision of the judge." Or, she can resolve the complaint or pass it on to the provincial judicial council—made up of top judges and lawyers, and two other people—for investigation, who can decide whether to recommend sanctions, education, or removal from the bench.
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Lede image via WIkimedia Commons.
Update: A spokesperson for the Chief Justice says she won't be hearing complaints in this case, but if there is a complaint another judge will be appointed in her stead.