Gregory Lenehan. Photo: CBC

“A reluctant acquittal.”

That’s how defence lawyer Luke Craggs characterized a decision by Nova Scotia judge Greg Lenehan last March, when Lenehan found taxi driver Bassam Al-Rawi not guilty of sexually assaulting an intoxicated 26-year-old female passenger.

Craggs noted that in his written decision, Lenehan admitted he “struggled to understand what this evidence proves.” His decision to acquit the driver sparked yowls of protest from women’s groups in Halifax and across the country.

Yesterday, the Public Prosecution Service tried to convince three judges on the Court of Appeal that Lenehan made several errors in law which provide the Appeal Court with ammo to overturn the decision by the lower court. But first, a refresher on the disturbing facts of this case.

A police officer testified  that shortly after 1am, a woman was found unconscious in the back seat of a cab, nude from the waist down. The officer testified her shoes were in the front seat and the driver’s pants were down with his fly unzipped. Driver Al-Rawi was observed trying to stow under the console the woman’s urine-soaked pants with the wet panties still inside them.

Judge Lenehan determined the passenger must have lost control of her bladder and urinated on herself before the driver stripped off the pants. The judge also ruled the driver “had touched the woman in a way that violated her sexual integrity.”

The woman’s blood alcohol level tested at .22 -.23. Judge Lenehan found she was indeed drunk. What the judge found more difficult to determine was whether, prior to passing out, she had given consent to the sexual touching, uttering the now infamous phrase: “Clearly a drunk can still consent.”

Crown prosecutor Jennifer MacLellan does not take issue with that oft-quoted statement from a judge who purportedly abstains from alcohol.  Instead, the prosecutor told the Appeal Court yesterday (Justices Jamie Saunders, Duncan Beveridge, and Cindy Bourgeois)) that it was Judge Lenehan’s job “to determine how drunk was too drunk to consent.”

MacLellan told the Court of Appeal that Lenehan’s first mistake was declaring he had “no evidence” to prove the woman hadn’t consented to sexual activity.

On the contrary, said MacLellan, the Crown had introduced “significant circumstantial evidence” — including the blood alcohol readings, the garbled text messages to friends, and urine-soaked clothes — to demonstrate loss of control over bodily functions.

MacLellan argued the judge “didn’t grasp” that the evidence introduced to show the passenger’s level of intoxication was the same evidence that proved she didn’t consent and lacked the capacity to do so. The Crown argued Lenehan’s failure to recognize the nature of this evidence led to a legal error in finding “reasonable doubt” that the woman had consented to sexual touching.

Justice Cindy Bourgeois asked the prosecutor whether the fact the woman had $20 ready to pay for the ride home and could provide her home address when woken by police might be considered a sign she had the ability to consent. MacLellan responded with a question of her own, asking how “a rote memory” of a person’s name and address could possibly be used as a sign of consent to have sex with a complete stranger in a cab?

Justice Saunders questioned MacLellan about why she hadn’t asked the forensic expert for her opinion on what impact such high blood alcohol readings could have on the woman’s capacity to provide consent. That omission may have been part of what led Lenehan to state he had “no evidence” to prove there had not been consent. MacLellan said she didn’t want a witness to usurp the judge’s right to make that decision.

Al-Rawi’s defence lawyer Luke Craggs said consent is the only issue in the appeal hearing that could overturn the original decision by Lenehan.

Craggs pointed out some unexplained points in the evidence he claims could be interpreted to show the woman did consent to some form of touching. A complete head-to-toe medical exam of the woman shortly after the 11 minutes she spent in the cab found no trace of Al-Rawi’s DNA on her body.

In contrast, the Crown found some of the woman’s DNA near Al-Rawi’s lips. Justice Beveridge noted the forensic report had not identified the source of the DNA, which could include a long list of bodily fluids. Craggs said the DNA evidence suggests the woman may have “kissed or licked” the cab driver in the course of getting the pants off.

In his written decision, Lenehan suggested the DNA found on Al-Rawi’s face could have arrived (inadvertently) from handling the woman’s urine-soaked pants. The Crown told the Appeal Court the judge had no business “speculating” on how the DNA got there and the Lenehan’s statement should be regarded as another legal error. Under questioning from the Appeal Court panel, Al-Rawi’s defence lawyer conceded Lenehan couldn’t be right on that point because if so, the woman’s DNA would also have been found on the cab driver’s hands, which it wasn’t.

The Crown also drew attention to a statement in Lenehan’s decision he attributed to the blood alcohol expert but which the Crown says reflected Lenehan’s own point-of-view. MacLellan told the hearing that the expert stated alcohol consumption can lead to risk-taking behaviour. What the judge said was alcohol can lower inhibitions which may lead people to initiate sexual activity they regret later when they are sober.

“Intoxicated women are more likely to be targeted for sexual attack,”  Kelly McMillan told the court on behalf of the Avalon Sexual Assault Centre Society, which was granted intervenor status. “This hearing represents an opportunity for the Court to provide more clarity on the capacity to consent. Instead of a grey line, there should be a context that includes an understanding of the sexual activity, a right to say yes or no, and an ability to assess risk and consequences.”

The Appeal Court panel has six months to make a decision. It can uphold the acquittal or order a new trial. Bassam Al-Rawi did not appear in court and is no longer a licensed cab driver in Halifax.

Jennifer Henderson is a freelance journalist and retired CBC News reporter.

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  1. How drunk is NOT too drunk? I would argue that consent can be zero before someone passes out. I’ve gotten myself into trouble before that way. Was I passed out? Nope. Was I too drunk to consent? Yep. Thank goodness I was with someone who didn’t take advantage.

    This is extremely difficult to determine legally. I don’t know what kind of scale we need. Right now, we’re making the assumption that everyone can consent until proven otherwise. But if we instead make the assumption that drunks probably cannot fully consent, what harm can come from that? By choosing to have sex with someone who is obviously drunk, we are choosing to risk the possibility of harming that person. I realize that legally, this carries little weight, but it doesn’t hurt to embrace this attitude in practice. Is this politically correct? Perhaps, but it is a consequence of my cautionary attitude: not my goal.

    We have already taken a cautionary approach with respect to drinking in certain cases where doing harm is possible. I may be perfectly fine to drive after a couple drinks, but we encourage people to avoid the risk, play it safe, and take a cab (preferably one that that can get us home without incident). Tattoo parlors take this same precaution. Many will refuse to give tattoos to someone who is drunk.

    Why not extend this same attitude to sex and drinking? Instead, it appears that the exact opposite approach has been taken. People have used alcohol as a means to extract “sexual consent” from someone who possibly otherwise never would have given it. The fact that one’s mental capacity is compromised is the desired outcome, rather than the deterrent. Maybe I love giving tattoos, and I hope the people I meet love them just as much as I do. Some just need a little convincing, though. So, a few drinks in, and we’re good to go (and so on and so on).

    1. ” …if we instead make the assumption that drunks probably cannot fully consent, what harm can come from that? “

      Few would respect it, and the courts would become clogged with bogus cases that would mostly resolve nothing but would likely waste lots of time. Because of that Crowns would be leery about taking on such cases and discourage cops from laying charges.

      Maybe we could pass laws that require both partners to blow into breathalyzers before indulging in sex?

      People like drinks (or joints) as part of encounters which might lead to sex. These drugs put people at ease and release inhibitions – especially important when people are just beginning a fun night out or hoping it could be the start of a promising longer relationship. This practice is so widespread that realistically I doubt any law will change it.

      As a rule, sexual intimacy takes place without witnesses. When something goes wrong there is often precious little reliable evidence to clearly support or refute charges.

      The courts are often expected to divine what was in the heads of drunken or stoned people who had sex months or years before the matter reached court. Since the Ghomeshi trial this task is being aggravated further by suggestions that a complainant’s inconsistent or erroneous testimony (elsewhere they would be regarded an ‘unreliable witness’) should not be held against them in such cases.

      As a result, most of the few cases that actually make it to court result in acquittals – not because the accused is proven to be innocent – but because the court cannot establish they committed the crime beyond reasonable doubt (the test for any serious crime).

      My own feeling is that in this particular case the issue wasn’t directly that the woman was drunk – it was that she was so obviously incapacitated (or unconscious) that she could not reasonably have consented. That should have been obvious to anybody including the taxi driver (who frankly should not be having sex with passengers while on the job for any reason).

      1. I was talking about in practice. I said this was difficult to determine legally. We are all so focused on the legal aspect, which is understandable. But I think our concern over what can legally be proven or prosecuted is interfering with the the ability to change societal attitudes and behaviours with respect to drinking and consent. It is possible that we could agree on a certain blood alcohol level that is legally acceptable for consent. Maybe some day we will do this, although how we would measure it would be impossible. For now, in practice, how much harm will it do to recognize that someone’s ability to consent may be compromised if that person is drunk? Assume, at least in practice, that it is, rather than that it isn’t? Perhaps we fear that if we formally recognize this fact, it could lead to prosecution of the innocent.

        1. With respect tempahull, I think this is asking people to accept Prohibition voluntarily. Heavy handed government backed by righteous pulpit firebrands failed to force it on us. I simply can’t see it working, no matter what advantages it might offer. I think we need to work on the way these crimes are handled by society at large.

          There seem to be two kinds of ‘justice’ involved with sexual crimes these days.

          There is the traditional court standard of proving the crime actually happened beyond reasonable doubt, which makes convictions mighty hard to obtain for victims (usually women).

          Then there is conviction in the court of public opinion based on multiple unproven but plausible sounding denunciations (which we are seeing so much of in Hollywood these days) that effectively destroys the careers and marriages of the designated accused even if the matter never reaches a real court.

          I’m frankly not comfortable with either and I feel we need to offer a much better way for complainants to seek redress against alleged offenders without either being humiliated or having their good name pilloried on news and social media.

          This is a very hard balance to achieve when ultimately what we are trying to determine is the state of mind of two likely inebriated people who did something together in secret and came away with different meanings for what happened.

          Maybe we will have to secretly video record our most intimate moments in case we might one day need them for court? (Just don’t leave them where the kiddies might find them and never upload them to The Cloud).

  2. The whole uproar over Lenahan’s “clearly, drunks can consent to sex” is misplaced–and a sign of how our politically correct media is incapable of critical thought on issues like this. Oh course drunks can consent to sex. Drunken Nova Scotians can and do consent to sex by the thousands every weekend. This woman wasn’t simply drunk. She was UNCONSCIOUS. Police caught Al-Rawi IN THE ACT of raping an unconscious woman. That’s what’s wrong with Lenahan’s outrageous verdict.

    1. Of course – but anyone who points out too publicly that drunk people can and do consent to sex regularly gets accused of being a rape apologist who is no better than Lenahan.

  3. How about we start looking at consent in this respect? If both parties are drunk or otherwise mentally compromised, then, yes, the lines are blurred. But when one party is drunk and the other party isn’t, the assumption should always be that there is no consent. No one is forcing you to have sex with a drunk person. What’s the worse that can happen if you choose not to? Oh, no. I guess you won’t have sex. Boo hoo. Just stop, already. Please.

  4. Without apology for Al-Rawi:

    Almost nobody actually believes that it is morally wrong to have consensual sex with someone who is intoxicated – nearly everyone except devout members of religious which forbid alcohol has done it (especially if you use the one drink = rape standard which is taught on college campuses). Obviously it’s a crime to attempt to force yourself on an insensate person in the back of your taxi. Who decides where the line is?

      1. Did I say that this was a gray area? My post was four sentences and two of them were about how this wasn’t a gray area.