Last week, a Canadian cabbie was acquitted of sexually assaulting an intoxicated female passenger—even though she was found unconscious and half-naked in his car, her DNA on his lips. Prosecutors have now decided to appeal the ruling.
Judge Gregory Lenehan, who presided over 40-year-old Bassam al-Rawi's trial in Nova Scotia, garnered widespread criticism last week for suggesting "a drunk can consent" to sexual activity. According to the court transcript, he said he was "left with no alternative but to find Mr. Al-Rawi not guilty" because he felt prosecutors had not proven beyond reasonable doubt lack of consent.
Read more: When Does Drunk Sex Become Rape?
In May 2015, police found al-Rawi holding the alleged victim's underwear and pants, apparently "trying to shove them between the front seat and the console." Some of her possessions, including her purse and jean jacket, were on the passenger seat; she was lying across the car's back seat, with her legs propped on the front seats, unconscious and naked from the chest down. Reports note that the woman, in her 20s, was so drunk that she'd urinated on herself, and that al-Rawi was sitting with his pants undone. While Lenehan acknowledged that the taxi driver had probably removed her clothes, he stated that he believed "DNA was located on Mr. Al-Rawi's upper lip because, in all probability, he wiped his hand or fingers over, either intentionally or absent-mindedly, after handling the urine-soaked pants of (complainant)."
Citing a forensic alcohol specialist who had testified in the trial, Judge Lenehan argued that "one of the effects of alcohol on the human body is it tends to reduce inhibitions and increases risk-taking behavior. And this often leads to people agreeing, and to sometimes initiating, sexual encounters, only to regret them later when they are sober." He noted that the alleged victim was incapable of giving consent when police found her, since she was unconscious, but that "the moment (complainant) lost consciousness" remained "unknown"—meaning there was, in his opinion, insufficient proof of her lack of consent.
"(Complainant) in her testimony could not provide any information, any details, on whether she agreed to be naked in the taxi or initiated any sexual activity," the judge noted. (She had testified that she had no memory of hailing the taxi or giving the driver her address, nor many of the events leading up to her getting a cab, including a fight with friends.)
CBCNews reports that prosecutors filing an appeal on the basis of at least six grounds, "which include Lenehan erred in law in suggesting there was no evidence of the lack of consent on the part of the complainant, speculating on the issue of consent rather than drawing inference from the facts proven in court, and failing to determine 'whether the accused had taken all reasonable steps to ascertain that the complainant was consenting.'"
One of the effects of alcohol on the human body is it tends to reduce inhibitions... and this often leads to people agreeing, and to sometimes initiating, sexual encounters.
The unnamed victim was not in court the day Lenehan delivered his March 1 ruling, but told the Canadian Press on Monday via email that reading his remarks later angered her: "It was impossible for me not to take it personally, and in general I wouldn't want anyone in that position to be labeled a drunk or to be told that being drunk made them not credible," she said.
Lucille Harper is the executive director of the Antigonish Women's Resource Centre and Sexual Assault Services. She says the Public Prosecution Service's decision to appeal the decision in al-Rawi's case makes today "a good day" and offers a message of hope to other sexual assault survivors. "I want survivors to be able to believe in the criminal justice system," she tells Broadly, "and that, if and when they come forward to disclose incidents of sexualized violence, that they're taken seriously—from the point of disclosure all the way through to the point of where a ruling is made on a sexual assault case."
Harper says that despite the news, she and others would still like to see some repercussions for Lenehan—whether that be extensive education on gender violence and sexual assault, removal from presiding over those types of cases, or even removal from the bench completely. An online petition calling for a formal inquiry has more than 35,000 signatures thus far.
Coincidentally, she says, Bill C-337, also known as the Judicial Accountability through Sexual Assault Law Training Act, was introduced in the House of Commons just last month. If passed, the legislation would require current judges and potential judicial appointments to complete comprehensive sexual assault education.
"I think it really speaks to the fact that [this continuing education] is sorely missing," Harper says, "and because it's sorely missing, we're seeing incidents such as [al-Rawi's] case, where the law has been misinterpreted and where justice has not prevailed."